THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-052
File Reference: ES/2010/058
Date of Issue: 17th November, 2011
Equal Status Acts, 2000-2008
Decision No. DEC-S2010-052
Equal Status Acts - Section 3(2)(g) Disability Ground - Section 4(1) Reasonable Accommodation - Nominal Cost
1. Delegation under the relevant legislation
1.1. On 2nd June, 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 26th April, 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, 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 23rd June, 2011. Further documentation was sought from the respondent and final correspondence in this respect was received on 12th September, 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 in terms of Sections 3(1)(a), Section 3(2)(g) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably by failing to provide him with reasonable accommodation in relation to its bus service on the Dublin to Derry route.
3. Summary of the Complainant's Case
3.1. The complainant submitted that the respondent has constantly refused him access to wheelchair accessible transport on the Derry to Dublin route, a route he uses on a regular basis. In particular, he made submissions with respect to and gave an account of a number of occasions between April 2010 and April 2011 when he said that particular requests he made in this respect were refused by the respondent.
3.2. The complainant stated that the buses in question had wheelchair lifts but that he had been told that they could not be used and he would have to be lifted onto the bus by the bus driver. He stated that he was told that the drivers had not been trained in the use of the lift. The complainant described the difficulties he had with this form of assistance. In particular, he submitted that he had to drag himself on the steps of the bus "on his bum", which he submitted was clearly unhygienic, degrading, humiliating and very embarrassing to him. He submitted that it also increased the risk of a pressure sore occurring due to dragging himself up a number of steps onto the bus and trying to climb onto a seat.
3.3. The complainant gave an account of a conversation he had about the matter with Ms A, accessibility officer for the respondent. This conversation took place on 18th April, 2011. He stated that he did not know that Ms A was the respondent's accessibility officer prior to speaking to her on that day.
3.4. The complainant stated that Z Co. put on a wheelchair accessible bus for him anytime he makes a request for same at 24 hours notice. He stated that it either uses the same wheelchair lift as is available on Bus Eireann buses, or else uses a low-floor bus and that he is able to alight at Busaras in that context. He also described an occasion when Z Co. carried out renovations to one of its buses at short notice in order to facilitate his use of the service in question. [Note: Z Co. provide a similar service on the route in question using the same timetable as the respondent (i.e. the same route timetable was used by both organisations and, depending on the time of day, either a Bus Eireann or Z Co. bus provided the service in question).]
3.5. The complainant submitted that the respondent has failed and is continuing to fail to have a wheelchair accessible bus available for wheelchair users like himself. He submitted that it is continual discrimination every time he wishes to use the Derry to Dublin return service. He stated that it was impossible or unduly difficult for him to avail of the respondent's service in the context of this complaint. He outlined the importance of the service to him, particularly as there were no rail or air connections to his home in Donegal.
4. Summary of the Respondent's case
4.1. The respondent stated that it did not really dispute anything the complainant had said in terms of the factual situation. It did add that there was one occasion when the complainant turned up at less than 24 hours notice and so could not be facilitated in that context and another occasion when he asked for a wheelchair accessible bus but did not arrive to avail of that particular service. It also stated that it considered that it had met the requirements of the Equal Status Acts as it considered it to be reasonable accommodation to have the driver assist the complainant to get on and off the bus in question.
4.2. The respondent outlined the extent of its fleet and stated that 42% of its coaches were wheelchair accessible by virtue of the wheelchair lift in question. However, it stated that, for various different reasons it outlined, the infrastructure was not in place to allow the lifts in question to be safely used at any of the bus stops along the route in question, including at the Busaras terminus in Dublin and with the exception of the stop in Derry. In that context, it stated that the drivers had not been trained in the use of the lift.
4.3. The respondent stated that the wheelchair accessible coaches in question had been first delivered in 2008. It stated that it carried out trials of them and now had four routes on which they could be used (the Dublin to Derry route had not been included among these routes for reasons outlined by the respondent). It stated that the low-floor vehicles it had were subject to a Public Service Obligation and could not be used on commercial routes such as the route in question.
4.4. The respondent gave an account of the reasons why Busaras was not accessible for use by the coaches in question. However, it stated that it had undertaken to carry out renovations to make it so, and outlined the difficulties it had encountered in this respect, in particular as Busaras is a listed building. However, it stated that it expected it to have a wheelchair accessible bay in place in September/October 2011. It stated that the only reasons why Busaras is not accessible related to cost factors and, in that context, it submitted that, while it had undertaken to carry out the renovations in question, nonetheless it submitted that the cost of these renovations amounted to more than nominal cost. It provided figures to the Tribunal in this respect.
4.5. The respondent submitted that it is committed to providing fully accessible services within specific time frames as specified and agreed within its Sectoral Plan under the Disability Act 2005 and outlined the actions it had taken to date in this respect. However, it submitted that the ownership and responsibility for bus stops rests with the Local Authorities and the Department of Environment, Heritage and Local Government.
4.6. The respondent stated that the flexibility was not there to make it possible for Bus Eireann and Z Co. to come to some arrangement whereby, if the complainant rang up, Z Co. could provide that service. The respondent also submitted that an e-mail from Z Co. showed that it only used low-floor buses to provide wheelchair access to the complainant at Busaras and it had not used coaches with wheelchair lifts. The respondent said that it could buy low-floor buses but described why it considered that it could not use them on the service in question.
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 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.
5.3. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.4. The respondent submitted that it had discharged its obligations to the complainant with respect to Section 4 by providing assistance to the complainant to get on and off the bus. Having heard the evidence of the parties in this respect, and, in particular, having considered the complainant's description of the difficulties he experienced with this form of assistance, I am satisfied that it was unduly difficult for him to avail of the service in question. Furthermore, in considering the question of reasonable accommodation, the Acts require that the respondent does all that is reasonable to accommodate the needs of the complainant. In particular, it must at least consult with the person requesting the reasonable accommodation with a view to establishing fully the factual position in relation to that person's requirements.
5.5. I am satisfied that it was unduly difficult for the complainant to avail of the service in question. I am also satisfied that the respondent failed to consult with the complainant with respect to establishing fully the factual position in relation to his requirements, failed to investigate whether there were any alternative forms of reasonable accommodation that could be provided to the complainant and failed to do all that is reasonable to accommodate him in that context. Therefore, the complainant has established a prima facie case of discrimination in that respect.
5.6. In coming to this conclusion, I note that the submission by the respondent that low-floor buses were unsuitable for use on the route in question cannot be reconciled with its submission that low-floor buses were the buses used by Z Co. to accommodate the complainant on such a route. Either Z Co. used low-floor buses on the Dublin to Derry route, or the complainant's submission that the wheelchair lift was used by Z Co. at Busaras, at least on occasion, is correct. The respondent's submission that it was not possible for it to allow the complainant to safely alight at Busaras is not credible in circumstances where it cannot adequately explain the reasons why another organisation, which provided the same service on the same route, was able to accommodate the complainant to his satisfaction and, furthermore, was clearly able to allow the complainant safely alight at Busaras.
5.7. I also note that Dublin Airport, which was on the Dublin-Derry route, was accessible for use by the coaches in question in July, 2010. With respect to journeys he undertook after this date, it occurs to me that the respondent could have consulted with the complainant with respect to alighting at Dublin Airport if he so wished and availing of the alternative services (e.g. low-floor Dublin Bus services) available there to take him on to his ultimate destination. If he rejected such an offer, that would have been a different matter, but such a possibility was not considered by the respondent. It also occurs to me that the respondent could have investigated whether there was a suitable alternative bus stop at an appropriate location within the city of Dublin where the coaches in question could have used the wheelchair lift. Again, perhaps this was not feasible, but it was never considered.
5.8 I am sure that none of these options were ideal, for either party, but at least one of them might have been reasonably suitable. Indeed, I am satisfied that the use of a low-floor bus was suitable. If the respondent, who I am satisfied had the resources to do so without incurring more than nominal cost, had looked into these possibilities and discovered they were not reasonable alternatives then that may have been sufficient to discharge its obligations towards the complainant. It did not do so. Nor did it consult with the complainant with respect to any other options that might have occurred to either party had such consultation taken place.
5.9. In rebuttal, the respondent relied on its submission that it was not possible to accommodate the complainant because Busaras was not accessible for use by the wheelchair lifts without carrying out renovations to the building, the costs of which were greater than nominal cost. The respondent, through no fault of its own, was not in a position to provide a complete picture of these costs. However, based on the information it was able to provide to the Tribunal, it is clear that the cost of the renovations required to make Busaras accessible for use by the wheelchair lift were high. They may even have been such as to fall within the meaning of the nominal cost defence, though it is well established by the Tribunal that nominal cost is relative to the resources of the particular respondent.
5.10. However, the respondent did not provide any evidence that the question of whether Busaras was accessible to wheelchair users was considered before 2008, some eight years after the Equal Status Acts came into effect. In that context, I do not consider that it can be said to have made reasonable efforts to investigate whether Busaras was so accessible. In any event, the question remains, as outlined in paragraph 5.6 above, as to why it could not accommodate the complainant at Busaras when Z Co. could.
5.11. It should be noted that nothing turns on this question as, even if the respondent was able to show that it could not accommodate the complainant at Busaras, it still has not met its obligations to do all that is reasonable to accommodate him. This is the case because, in any event, it is clear that the respondent did not do all that was reasonable to provide the complainant with special treatment or facilities. In particular, it did not consult with the complainant about his requirements at any stage.
5.12. Therefore, the respondent has failed to rebut the prima facie case established by the complainant in this respect. As the respondent has stated that it expects Busaras to be accessible by October, 2011 and, in that context, the wheelchair lifts can be used from that time, I am making no order in that respect. However, I would urge the respondent to note that it is a continuing breach of the Acts for it to fail to provide the complainant with a suitable form of reasonable accommodation, in circumstances similar to those as already outlined in this complaint, and once he provides it with reasonable notice of his requirement for a wheelchair accessible service.
6.1. 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:
6.2. I find that the respondent discriminated against the complainant on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and 4(1) of the Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent has failed to provide him with reasonable accommodation in the context of this complaint.
6.3. I order the respondent to pay to the complainant the sum of €1,000 for the distress caused to the complainant as a result.
17th November, 2011