THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS, 2000-2008
Decision No. DEC-S2011-026
(represented by the Equality Authority)
Declan McCaul (Mini Bus Hire)
File Reference: ES/2009/025
Date of Issue: 30th June, 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2011-026
Declan McCaul (Mini Bus Hire)
Equal Status Acts - Section 3(2)(g) - Disability ground - Section 4(1), Reasonable Accommodation - Section 25A - representation - Section 21(2) Notification - "not called for" - registered post - Guide Dog - Transport
1. Delegation under the relevant legislation
1.1. On 6th March 2009, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008. On the 18th November, 2010, 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, 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. Written submissions were received from both parties. A hearing of the complaint was held on 22nd February, 2011.
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the disability ground contrary to the Equal Status Acts (hereinafter referred to as "the Acts") in terms of Sections 3(1)(a), 3(2)(g) and 4(1) of the Acts and contrary to Section 5(1) of the Acts in that the respondent treated him less favourably with respect to the presence of his guide dog on the respondent's transport service and failed to provide him with reasonable accommodation in that respect.
2.2. The respondent submitted at the hearing that he required an adjournment to obtain representation (and had also contacted the Tribunal late the previous evening to that effect). To that end, he submitted a letter from the Legal Aid Board dated 10th February, 2011 stating that he had been placed on a waiting list with respect to representation in the matter.
2.3. The respondent's adjournment request was considered at the opening of the hearing and before any evidence relating to the substantive matters at issue was heard. In coming to a decision on the respondent's submission in this respect, the primary consideration must be the application of fair procedures and the principles of natural justice to both parties and the effective and efficient administration of justice. In that context, I had to consider whether the circumstances outlined by the respondent were exceptional and sustainable as such to the extent that it would be fair and reasonable in those circumstances, and all the other circumstances of the present case, to grant the adjournment request.
2.4. I noted that the respondent previously had representation. I also noted that the private solicitor concerned had indicated that it had been unable to contact the respondent. It later come off record in the matter. I also noted that the respondent had ample opportunity to obtain alternative representation in advance of the hearing and the decision of the Legal Aid Board to provide the respondent with representation was made almost two weeks before the hearing. I also noted that the respondent only made a formal application for an adjournment at the hearing, having made a phone query about the matter to the Tribunal the previous evening. I was also satisfied that the respondent was provided with ample notice of the hearing. I was further satisfied that he was aware that he was entitled to bring a representative to the hearing even before that notice was provided to him.
2.5. While Section 25A of the Acts provides that a party may be represented at a hearing, part of the Tribunal's remit is to ensure that a party is not set at a disadvantage by not being represented. The Acts do not require that, in all the circumstances of the present case, the hearing should be postponed to allow a party bring representation to that postponed hearing. I brought this to the respondent's attention. I would add that, if, at any stage of the hearing, the respondent was not in a reasonable position to respond to any matter that arose, then I would have taken any steps I considered necessary to ensure that fair procedures and natural justice were afforded to him in that respect. Such steps could have included allowing a period of time after the hearing to allow further written submissions and/or the scheduling of an additional date for hearing and/or the adjournment of the hearing at that stage.
2.6. In all the circumstances of the present case, then, and while taking account of the respondent's stated desire to bring representation to the hearing, I did not consider the circumstances he outlined in that respect were exceptional. Nor did I consider that it would be contrary to fair procedures and the principles of natural justice with respect to the respondent were the hearing to proceed as scheduled. Therefore, I refused the request to have the matter adjourned and proceeded with consideration of the substantive matters at the hearing.
3. Summary of the Complainant's Case
Preliminary matter - notification
3.1. The complainant submitted that the notification required by Section 21(b) of the Acts was sent by the complainant to the respondent in mid-December 2008 but was returned marked "not called for". He submitted that he re-sent the notification in early January 2008 but it was again returned marked "not called for". The complainant submitted that he also wrote to the respondent on 20th May, 2009. He submitted that he had complied with the statutory notification requirements set out in Section 21(2) of the Acts as he had sent the notifications by registered post. He said that he had gone further than was required in that respect. He submitted that the complainant had failed to call for these letters.
3.2. Notwithstanding this, the complainant submitted an application under s.21(3)(a)(ii) arguing that the respondent was aware of the circumstances in which the prohibited conduct occurred and that any such direction would not prejudice his ability to deal adequately with the complaint. At the hearing, he said it was very difficult for him to make the application in the first place as he is blind and had to obtain assistance from his cousin not only to complete the notification but also to send it to the respondent on two occasions. He submitted that, if this submission is not accepted, exceptional circumstances arose whereby it was fair and reasonable to direct that s.21(2) shall not apply in the present case.
3.3. The complainant, who has been totally blind for seven years and is a guide dog user, submitted that he used the mini-bus service provided by the respondent to travel from his home in Carrickmacross to the Institute of Technology in Cavan (CIT) where he attended college on a daily basis. He submitted that he had been using the service from the time he started college in September 2007 until 21st November, 2008 when he said the service was withdrawn by the respondent. He submitted that his travel costs of €60 per week were paid for by CIT. He submitted that a number of other people also used the same service each day to attend the college.
3.4. The complainant stated that his experience of the respondent's service up until November 2008 was that it was fine. He said that the respondent made no mention of discontinuing the service prior to September 2008, and that there were no issues with the provision of the service up to that point.
3.5. The complainant said that, in September 2008, the respondent told him that the service was not paying and that he would have to discontinue it. He said that, on 19th November following, the respondent told him that he would discontinue the service on the following Friday. He said that he then called Ms A in a named taxi company, Q Ltd. to arrange alternative transport.
3.6. The complainant said that on the Thursday (20th November) he spoke with a female passenger, whose name he did not know, and asked her if she knew about the alternative transport that he had arranged for the following Monday, but that she told him she did not know anything about it or about the respondent discontinuing the service. He said that he had not spoken with anyone else about the matter as he had asked the respondent to tell them about that service and had believed him when he told him, on the 21st November, that he had informed the other passengers about it and that they said they would avail of this alternative transport.
3.7. The complainant said that, on 24th November, Ms A picked him up and waited at the first pick-up point. He said that they then went to the other pick-up points, but that no passengers appeared. He said that, when he arrived in Cavan, Ms A told him that she could not continue the service if he was going to be the only passenger availing of it. He said that she was annoyed and he was embarrassed and he told her not to come to Cavan to pick him up, as he would make alternative arrangements.
3.8. The complainant said that Ms B (who was appointed as the complainant's assistant while in CIT in September 2007), went with him to meet Ms C, who was the complainant's class tutor. He said that she said she had seen the respondent and he was still doing the bus run. He said that it then became clear to him that the respondent's service was still available. He said that Ms C called the respondent on the telephone and asked would he be able to take the complainant into college. He said that, after finishing the call, Ms C told him that he had said no and that he had been "ignorant" on the phone. He said that this phone call left no further possibility of further arrangements being made with the respondent.
3.9. The complainant said he never heard Ms C suggest to the respondent that he (the complainant) might leave the dog at home and he never heard her speak with the respondent about alternative transport arrangements. He said that he did not have transport for the following week either and he would have availed of the respondent's transport if it had been available but he said no offer was made to him in that respect. He said that, on Monday 24th, the college paid for his transport back and he had to take the rest of the week off. He said he stayed with a friend, Ms D, for the following week.
3.10. He said that CIT then tried to find alternative transport and, in this respect, Ms C tried to make further contact with the respondent. He said that CIT ultimately paid Q Ltd to provide him with transport.
3.11. The complainant denied that the respondent ever spoke to him about continuing the service in a smaller vehicle. He said that, at one stage, the respondent had been on holidays and he had travelled to the college in the respondent's mother's car which was a smaller vehicle. He said that the dog sat under his feet for these journeys. In short, he said he had no issue with a smaller vehicle and could have gone in one no problem if he had been asked. He denied that he told the respondent the dog could stand up in such a situation and that guide dogs were trained to lie down when the vehicle was in transit.
3.12. The complainant acknowledged that there never had been a problem with his dog prior to this. He said that the very first time he had a conversation with the respondent about his guide dog was when the respondent had asked would the guide dog be able to go in a trailer box. The complainant said he did not know anything about contact between the respondent and the college about requests for further funding.
3.13. Ms B, who was present at the hearing, said that the respondent had approached her and asked would it be ok if he put the dog in a "trailer box". (She later clarified that to mean a dog box at the rear of the vehicle, as described by the respondent). She said she could not remember specifically when he asked her this, but it was sometime between September and November 2008. She said that the respondent had also told her, on a separate occasion probably sometime in November, that passenger numbers had dwindled because of the smell of dog hairs on the bus. She said that the respondent never raised the issue of alternative transport with her. She agreed with the respondent that he did not seem ignorant or difficult to get on with.
3.14. With respect to the events of 24th November, Ms B said that she met the complainant off the Q Ltd. taxi and Ms A told her that she would not be able to continue with the transport arrangements. She said she then went to the Deputy Principal to explain what was going on and they arranged for a private taxi to take the complainant home. She said she was present with the complainant and Ms C when she rang the respondent. She said this conversation took place in Ms C's office. She said she could not hear the conversation but that Ms C seemed upset. She said that, after the conversation was over, Ms C said the complainant will have to arrange alternative transport as the respondent was not taking him home.
3.15. When asked her response to the respondent saying that there was a problem with funding, Ms B said that there was no problem because when the respondent stopped coming the college paid for private transport for the complainant, which she thought would be more expensive for the college.
3.16. Ms D, who was also present at the hearing, said the complainant was withdrawn when he stayed with her when he was normally very outgoing. The complainant said that he had lost a lot of confidence and independence after this experience. He said that he had gone to the doctor who had prescribed anti-depressants. He submitted that there were others on the bus and they never complained to him about his dog.
3.17. In summary, the complainant reiterated his evidence. He also referred to Ms B's evidence which showed that the respondent had a difficulty with the guide dog being on the bus in question. He also pointed to the fact that the respondent's submission was contradicted by his oral evidence at the hearing. In short, he stated that he was treated less favourably because of his disability and that the respondent failed to meet his obligations with respect to reasonable accommodation for the complainant.
4. Summary of the Respondent's Case
Preliminary matter - notification
4.1. The respondent stated that he never got the notification by registered post, and never received a notification that there was registered post for him. The respondent also made a correction to the address on record by the Tribunal and used in the notification form
Substantive matters - submissions
4.2. As the respondent's submission was quite different to his oral evidence at the hearing, the respondent said that his oral evidence was correct, rather than the submission. (This submission had been provided when he had been represented, but the representative had come off record before the hearing). Nonetheless, the following summary of those submissions should be noted: The respondent submitted that he had begun to experience a downward turn in his business in September 2008 and that the "bus run" was costing too much for the passengers using it. He submitted that he consulted with the complainant about the use of a smaller vehicle for the run and that the complainant declined and proceeded to check out other services.
4.3. The respondent submitted that he contacted CIT with a view to obtaining further funding for the bus run but was advised there was no further funding available and, on that basis, the respondent proceeded to offer the service with a smaller vehicle. On that basis, he submitted that the complainant proceeded to seek an alternative service (Q Ltd.) while the other passengers, with whom the respondent consulted, confirmed they would be happy to continue with the service using the smaller vehicle. In his submission, the respondent denied that he told the complainant he would be discontinuing the service.
Substantive matters - evidence at hearing
4.4. The respondent stated at the hearing that the service in question was in place at least a year before the complainant availed of it. He said that the other services he provided were at weekends and he only had one bus, which was a 13-seater. The respondent said that, in September 2007, 13 passengers were availing of the service in question and the bus was full in that respect. He said that, by November, 2008, there were only six or seven people, including the complainant, availing of that service, but they were all regular users of it. In that context, he outlined why he considered it more viable to use a smaller bus for the route in question.
4.5. The respondent said that, in a conversation with the complainant at the end of September, he told him that he was going to have to finish "the run" if he could not get more money. He said that he spoke with the complainant again approximately a week later and asked him whether, if he got a smaller vehicle, he could put the dog in it. He said that the complainant responded that he would not want the dog in a dog box but that if there was room in the back, the dog could stand up. The respondent said he felt it would not have been suitable to have the dog in a confined spot like this, but had not told the complainant this. Instead, he said that he told him that it was all right and they would see how it goes but he would look for more money first. He said he proceeded to contact CIT in that respect.
4.6. The respondent said that he spoke with Ms B and she told him that they had run out of funding the previous year. He said he did not ask for a specific amount of money nor did he ask for an extra €5 directly from the complainant as the funding came from the college. He said he did not know why they would be funding him when the funding had run out but that was a question that should be put to CIT.
4.7. The respondent said that, when he told him he would be discontinuing the service, the complainant told him he knew someone that might be interested in providing an alternative service. He said he never communicated directly with Q Ltd about taking over the service but that, on Friday 21st November, before the complainant got on the bus, he told the other passengers about this alternative. When they asked if he was finishing up completely, the respondent said that he told them that he could continue by using a smaller vehicle but he would have to charge them €65 per week because of the cost of running it.
4.8. The respondent said that this was the first time he mentioned stopping the service to the other passengers as by then the complainant had the alternative transport organised and he had said he would keep going until that had been done. The respondent said he had mentioned the problems with the viability of the service to other passengers but only "in passing".
4.9. The respondent said that the other passengers had to discuss with their parents over the weekend about getting extra money. He said that, on 23rd November, he received a phone call from "the lassies" who asked if he would still be interested in doing the run if they paid him that extra. He said that he told them he would be willing to do it in that case. He said that it had been his intention to quit the run before he received this phone call. He said he then continued the run for the rest of the year using a seven-seater bus. He said he did not contact the complainant about this as he knew the complainant had his own bus organised.
4.10. The respondent said that the vehicle he had on the Monday (24th) was the seven-seater as the 13-seater was being used by his friend who had rung him that weekend to ask him if he could use the larger bus for a school run that week as his own bus had "let him down". He had earlier said that he got the seven-seater at Christmas time, but then said that it must have been earlier than Christmas.
4.11. The respondent said that Ms B rang him to ask if would still take the complainant if he would leave the dog at home. He said that he responded that he was taking the complainant and the dog but that he could not provide them with a place that week, but if she rang him later in the week, he would "have something organised". By that, he said he meant he would have organised another car. He denied saying to her that he had not discontinued the service but did not want the dog on the bus. He said that he thought this conversation took place mid-week but, in any event, he had no more contact from the college and did not speak with Ms B that morning, other than on the phone, but that she might have seen him "in passing".
4.12. The respondent said that he had no further contact with Ms B other than the phone conversation already described. He said that he did not contact the complainant directly after this as Ms B had never said that he was not able to avail of the other service, and he thought he just could not get the service that week. He said he did not know that the complainant was off college and that he was not told that he was left sitting at home.
4.13. The respondent said he never had any issue with the guide dog. He said he did not know why passengers had been leaving until " a girl" said it was because of the dog and hairs and that other passengers had approached him about hairs on the vehicle and that they have a smell of the dog because he was shredding hairs. However, he said he "passed no remarks on them". He said he did say it to Ms B and did mention to her about using a dog box, which is a box that hangs at the back of the car and is a special box for dogs, but never mentioned a trailer box. He said he would have continued allowing the complainant to use the service but would have continued whether the dog was in the dog box or not.
4.14. The respondent said that his last service had been on 26th November, 2009, and he started signing on then. He said he was not running busses anymore.
5. Preliminary Jurisdictional Issue
5.1. Section 21(2) of the Acts states that:
"Before seeking redress under this section, the complainant
shall, within 2 months after the prohibited conduct is alleged to have occurred....notify the respondent in writing of
the nature of the allegation,
the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act..."
5.2. It is not contested that the information contained in the notification document sent by the complainant to the respondent met the requirements of the Acts. It was sent by him to the respondent by registered post in December 2008, less than two months after the alleged incident. This letter was returned to the complainant marked "not called for". He then resent the notification by registered post in January 2009 and it was again returned marked "not called for". The respondent submitted that he never received the notification, nor did he recollect receiving any notice that there was registered post for collection by him. Therefore, he stated that he was not aware of the complaint that was being made prior to receipt of the complaint form.
5.3. I note the case of O. (K.J.) -v- the Minister for Justice, Equality and Law Reform where T.C. Smyth, J. considered the law in relation to service where a notice by registered post is returned marked "not called for". He stated that "It cannot be the law that where a statute obligates a person to give notice to another and in discharge of that obligation forwards the notice by registered post to the correct address to that other, and the intended notice is not in fact received because the recipient is not present at the time of delivery or fails, neglects or otherwise does not call to the Postal Authorities to collect same and that person does not tender to the Court evidence on oath orally or on Affidavit to explain the circumstances of his/her conduct that the Court should accept as rebutted the service deemed by the statutes".
5.4. In the present case, the respondent did not collect the initial registered post envelope, nor did he collect the second registered post envelope. At the hearing, he offered no explanation for this behaviour other than to say he did not recollect ever receiving the registered post in question, or indeed any notice that same was available for collection. However, I am satisfied that he chose not to collect the registered post in question. This is not an adequate explanation that would rebut the service effected, particularly in circumstances where the consequence of such a rebuttal would be that the complainant's case would fail.
5.5. I note that Section 21(2A) of the Acts states that "for the purposes of subsection 2 the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent (my emphasis)" Section 5 of the Interpretation Act states: "(1) In construing a provision of any Act......(b) that on a literal interpretation would be absurd.....the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole." Therefore, I am obliged to take a purposive approach to the interpretation of the relevant provision of Section 21(2A).
5.6. I am satisfied that the highlighted portion of Section 21(2A) above was introduced by the Oireachtas to address a situation where a respondent can satisfy the Tribunal that the notification was not properly served on it such that natural justice would not be served by allowing the notification requirements to be met in such case (e.g. where an incorrect address was given and registered post is returned marked "not at this address"). I do not consider it was the intention of the Oireachtas to allow a respondent evade service by not collecting registered post, particularly where the consequence would be that the complainant's case could not proceed (as the notification requirements would not be met). In that context, I am satisfied that the notification was received by the respondent within the meaning of the Acts as it was available for collection by him and he chose not to collect it.
5.7. The respondent also stated that the address to which the registered post was sent was not exactly correct. However, it was clearly sufficient for the Postal Authorities to have identified it twice and sought to effect service of the letters in question to that address. Furthermore, the address used by the complainant was the address used by the Tribunal in its correspondence with the respondent and all correspondence to that address was received by the respondent.
5.8. Therefore, I am satisfied that the notification requirements have been met in this case. Let me also state that even if they had not been met I am satisfied that it would be fair and reasonable for me to invoke the exceptional power provided to me under Section 21(3)(a)(ii) of the Acts to direct that the notification requirement shall not apply in this case. In particular in this regard, I consider that, in all the circumstances of the present case, it would not be fair and reasonable to find that the complainant's case cannot proceed because the respondent failed to collect the notification which was served upon him by registered post.
6. Conclusions of the Equality Officer
6.1. 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.
6.2. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him 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.
6.3. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. It is not disputed (at least as far as the oral evidence is concerned) that the respondent told the complainant that he was discontinuing his service to Cavan IT on Friday but on Monday he continued with that service. The question is whether the respondent had always intended continuing with the service the following Monday in a smaller vehicle and that he deliberately misinformed the complainant because he did not want the guide dog on the bus, or whether he changed his mind about continuing with the service over the course of the weekend in question.
6.4. I note the complainant's evidence with respect to the reasons why he changed his mind over the weekend in question. He states that "the lassies" persuaded him to do so, yet he did not contact the complainant, a regular customer, to inform him of this. He then states that he could not accommodate the complainant when asked as, coincidentally, a friend of his rang him over the weekend to ask him for use of the larger vehicle and the smaller vehicle had exactly the number of seats for the passengers who remained and still wanted to use the service and so there was no room for the complainant.
6.5. I also note that the respondent's submissions in advance of the hearing indicated that he denied suggesting he was discontinuing the service in question, rather that he told the complainant he would be doing so in a smaller vehicle and that the complainant was not satisfied with this and so sought an alternative service. The respondent rejected this submission at the hearing (on the basis that his representative had erred in this respect) stating that he had decided to discontinue the service. And yet I found his oral evidence to be equivocal at best and inconsistent at worst and it is clear that he did continue with the service without interruption.
6.6. Furthermore, the respondent's evidence with respect to when he purchased the smaller vehicle was contradictory and inconsistent. What is clear is that, at the time in question, he had two vehicles for use, one of which had recently been acquired, which is not consistent with someone who intended on reducing rather than increasing his business. I also note that he submits that he did not tell his passengers that he was discontinuing the service until the day he discontinued it, but that he also told them about the alternative transport (and that he did so when the complainant was not present). Yet, in those circumstances, he submits that those passengers pleaded with him to take extra money to take them in a smaller vehicle when another service was available to them.
6.7. Having considered all the evidence, then, I do not find the complainant's submission that he changed his mind over the weekend in question to be credible. The respondent also submits that, in asking about the use of the service, Ms C suggested that the complainant, who was totally blind, could leave the dog at home. I do not find that submission to be credible either. In any event, and while there were some inconsistencies in their evidence, I found the account of the complainant and Ms B with respect to that conversation to be more compelling.
6.8. Therefore, I am satisfied that the respondent did not intend on withdrawing the service at the time in question. I am satisfied that he formed the view, based on what "the lassies" had told him, that the numbers of people using his service were dwindling because of the presence of the guide dog on the bus. I am satisfied that, consequently, he made the decision to surreptitiously prevent the complainant from continuing using his service by deliberately misinforming him of a fictitious intention to discontinue the service because he was unable to obtain funding.
6.9. I am further satisfied that when the respondent was challenged about the matter, he admitted to Ms C that he did not wish to take the complainant and his guide dog on his bus. I am also satisfied that he did not tell the other passengers about the alternative service that the complainant had arranged, not least because he did not intend on discontinuing his own service (thus, Q Ltd was a competitor). In short, I am satisfied that the respondent deliberately misinformed the complainant that he was discontinuing his service so as to prevent him availing of that service, and that the reason for him doing so was because he did not wish the complainant to continue to bring his guide dog on the bus.
6.10. In that context, it is well established in the Tribunal that, where there is an allegation of discrimination similar to the one in question, the general approach taken is as laid out in Mr. John Maughan -v- The Glimmer Man Ltd, where the Equality Officer reached the following conclusions:
[9.7]".. I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent's premises they would not have been served in line with the respondent's no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) "discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations". This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O'Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38)"
So, as the Equality Officer stated in Gabriel Moloney -v- Park House Hotel
"[a guide dog is] not just a pet...it had a specific purpose and function, its owner was visually impaired and requires the use of the dog to find his way around...the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise."
6.11. On the same basis, by treating the complainant in the manner which he did because of his guide dog, the respondent discriminated against him and the complainant has established a prima facie case in that respect. As the complainant was already availing of the respondent's services, and as, in any event, the additional cost of transporting the complainant in a smaller vehicle was no more than €5 per week, I am satisfied that the issue of nominal cost does not arise in this case.
6.12. The respondent's rebuttal relied on a rebuttal of the facts presented allied to a recounting of all the circumstances where he showed he did not have a difficulty with the complainant's guide dog. However, whatever his views on the matter prior to November 2008, it is clear that, by then, he had a difficulty with the guide dog in question being present on his bus and acted upon his concerns in that regard. Therefore, the respondent has failed to rebut the prima facie case established by the complainant in that regard.
6.13. It is clear that, concerned at the business he might lose from certain customers who complained about the "smell of the dog", the respondent took those views on board. However, by doing so, he failed in his responsibility as a service provider to comply with the Act and behaved in a manner that was contrary to the fundamental principles behind the Acts in that respect, particularly by preventing the complainant from accessing the service in question. I note that the respondent acted consciously and deliberately in this respect. I also note that the complainant relied quite heavily on that service and that at least a week of his education was seriously disrupted by the respondent's unlawful behaviour. I also note the extent of the distress that was caused to the complainant as a result. I have taken these factors into account in my award in this case.
7.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
7.2. I find that the respondent discriminated against the complainant, in terms of Sections 3(1)(a), 3(2)(b), Section 4(1) and Section 5(1) of the Equal Status Acts.
7.3. Accordingly, I order the respondent to pay to the complainant the sum of €2,500 for the effects of the discrimination.
30th June, 2011