EQUAL STATUS ACTS
Decision No. DEC-S2012-022
File Reference: ES/2011/103
Date of Issue: 6th June, 2012
Equal Status Acts - Section 3(2)(g), Disability Ground - Respondent required complainant to travel accompanied - whether discrimination on disability ground - question of whether taxi is wheelchair accessible
1. Delegation under the relevant legislation
1.1. On 21st July, 2011, Mr Dermot Walsh (hereinafter referred to as "the complainant") referred a claim against Noel Garland (hereinafter referred to as "the respondent") to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th November, 2011, in accordance with his powers under section 75 of the Employment Equality Acts 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 ("the Acts"), on which date my investigation commenced.
1.2. Written submissions were received from the complainant only. A hearing of the complaint was held on 13th March, 2012. Both parties were in attendance at the hearing.
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) and 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 discriminated against him in requiring him to be accompanied by another person because of his disability and failed to provide him with reasonable accommodation by not having a suitably wheelchair accessible vehicle to transport him to his destination.
3. Summary of the Complainant's case
3.1. The complainant has cerebral palsy and is a wheelchair user. He stated that, on 12th June, 2012, he called for a taxi to collect him from a particular location. He stated that, as soon as he arrived, the respondent shouted to him in a very aggressive manner that he would not take him unaccompanied. He stated that a friend who was with him, Mr A, began to assist him into the vehicle. He stated that the respondent put his hand on the vehicle and attempted to operate his wheelchair, which is seriously dangerous. He stated that he then attempted to get into the vehicle. He stated that he could not recollect exactly how he got into the vehicle and accepted that it was possible that he may have nearly fallen off the ramp. He added that this was indicative that the ramp was unsafe and added that his chair was too heavy for Mr A and the respondent to prevent such a fall.
3.2. The complainant stated that when he got into the vehicle he was turned sideways and was unable to turn around to face forwards. He stated that, as he considered it was unsafe for him to travel sideways in the vehicle, he got out of the vehicle and told the respondent that he would not travel with him. He stated that he could have turned sideways if his feet rests had been taken off, but he had nobody to do this for him and he did not think he should have to dismantle his wheelchair to get into a vehicle that was supposed to be wheelchair accessible. He stated that he did not raise the matter with the respondent in that context. He stated that he would have found it very difficult to communicate with the respondent in any event because of the way in which he had treated him. He added that the respondent did not have the additional safety equipment that a wheelchair accessible vehicle should have.
3.3. The complainant said that when he went around to the front of the respondent's vehicle on the night in question, he did so only to get the licence plate number. He denied the respondent's claim that he was "effing and blinding" at that stage and stated that when he gets upset, he can look more aggressive than he is. He stated that the respondent then left but returned ten minutes later to collect another customer. He stated that, when he returned in that context, the respondent shouted to him that he was not going to take him. He stated that he had used the respondent's taxi before. He stated that he had been required to travel sideways with him on that occasion also, but he did not have a battery with him then whereas he did have his battery with him on the night that is the subject of this complaint. He said he would not travel sideways with a battery on board his wheelchair.
3.4. The complainant stated that he thought he had four drinks on the night in question. However, he denied that he had a drink on him when the respondent arrived and stated that it was not possible for him to hold a drink in his hand. He added that the only way he could have had one with him was if it was stored in the back of his chair which is where he stores anything he wishes to carry with him. In that case, he stated that the respondent would not have seen the drink.
3.5. In summary, the complainant stated that the principal strand of his case is that the respondent refused to take him in his vehicle unaccompanied. He stated that this was discrimination on the disability ground as the reason he would not do so was because of his disability. He stated that he was totally independent and fully capable of making his own way home and he was not treated in an appropriate manner by the respondent. He stated that the consequence of the respondent refusing to take him on the night in question was that he had to drive his chair into town and then wait for a Nitelink bus home. He also stated that the respondent had failed to provide him with reasonable accommodation by requiring him to travel sideways. He stated that it was illegal and unsafe for him to be required to travel in that manner and provided documentary evidence to support this submission.
4. Summary of the Respondent's case
4.1. The respondent denied saying that he would not take the complainant unaccompanied when he first arrived to collect him. He stated, however, that both the complainant and Mr A had "pints in their hands". He later clarified that Mr A held the drink between his shoulder and his arm. He stated that he did touch the wheelchair but only in an attempt to assist the complainant into the vehicle. He stated that the complainant almost fell out of the chair while getting into the vehicle and that he and Mr A had to stop the chair from falling. He stated that eventually he and Mr A were able to "whoosh" him into the taxi.
4.2. The respondent stated that, after entering the vehicle, the complainant tried to turn the wheelchair forward but the wheelchair would not turn. He said that the complainant got very aggressive and started shouting. He stated that his presumption was that "there was alcohol involved" and that he had concerns about the complainant's safety in that context. He stated that he asked Mr A to accompany him in taking the complainant as he did not think he would be able to get the complainant out of the taxi at his destination safely if Mr A did not travel with him. He stated that Mr A said he would not do so. He said that, as he was speaking with Mr A, the complainant came out of the vehicle and told him he was not travelling with him but did not explain why. He stated that just before he left the complainant came to the front of his vehicle and started "effing and blinding".
4.3. In short, the respondent denied refusing to take the complainant as soon as he arrived. He said he only required Mr A to come with him when it became clear to him that he would not be able to safely enable the complainant exit the vehicle at his destination. He stated that, for his safety and the safety of any such passengers, he would refuse any person who had taken too much alcohol. He stated that when the complainant got in his vehicle, he assumed he was intoxicated.
4.4. With respect to the issue of reasonable accommodation, the respondent stated that his vehicle has been a fully certified wheelchair accessible vehicle for ten years and has been passed by the National Care Testing service as such. He stated that the complainant could have been able to face forward if he had told him that he could do so with his footrests removed from the wheelchair. He added that he had taken the complainant in his vehicle before and said that he did have all the necessary safety equipment but did not get a chance to take it out and put it in place on the night 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. There are two issues at stake in this complaint: Firstly, did the respondent refuse to take the complainant unaccompanied and did he discriminate against him because he had a disability in that context?; secondly, did the respondent fail to provide the complainant with reasonable accommodation in terms of providing him with transport services?.
Less favourable treatment
5.4. It is accepted that the respondent told the complainant that he would not take him in his vehicle unaccompanied. What I have to decide upon in that context is whether his refusal to do so was less favourable treatment of the complainant because of his disability. The complainant submitted that the respondent told him he would not take him as soon as he arrived at the premises in question. However, I am satisfied that, rightly or wrongly, the respondent did not refuse to take the complainant unaccompanied until after he formed the view that he and Mr A had been consuming alcohol and that it would be unsafe to take him unaccompanied in that context. I am satisfied that his refusal to do so, then, was not related to the complainant's disability but was based on a genuine belief on his part that the complainant was intoxicated. Whether he was or not is irrelevant in those circumstances.
5.5. The second issue is whether the respondent failed to provide the complainant with reasonable accommodation insofar as he alleges that the vehicle in question was not wheelchair accessible. It is not for me to make a determination as to whether the respondent's vehicle was wheelchair accessible in accordance with the relevant taxi and/or general transport regulations. What I have to decide is whether the respondent failed to provide the complainant with reasonable accommodation in the context of Section 4 of the Acts as already outlined.
5.6. In that context, and in all the circumstances of the present complaint, for the complainant to establish that the respondent failed to provide him with reasonable accommodation, he must show three things: firstly, that it was impossible or unduly difficult for him to avail of the service in question; secondly, that it would not have been impossible or unduly difficult for him to avail of the service if he had been provided with special treatment or facilities; thirdly, that the respondent refused or failed to provide him with special treatment or facilities when it could have done so without incurring more than a nominal cost.
5.7. The Acts are, inter alia, designed to "try to ensure that access for people with disabilities across a wide range of services will be improved. " They do not provide for an ideal in that respect, certainly not as far as Section 4 is concerned. In the present case, it is clear that the complainant's wheelchair could have fitted into the respondent's vehicle while facing forward if the footrests on the front of the wheelchair had been temporarily removed. Therefore, the removal of the footrests alone would have left no doubt that the complainant could be provided with the respondent's service on the night in question. Irrespective of any other consideration, this would have been sufficient to satisfy the respondent's obligation under the Acts to provide reasonable accommodation to the complainant.
5.8. The Tribunal has stated in a number of decisions that there is an obligation on a service provider to consult with a disabled person with respect to their requirements for reasonable accommodation. But that principle must apply both ways and a disabled person must take reasonable steps to inform a service provider of what can be done to enable them access the service in question. In the present case, the complainant did not engage with the respondent in a reasonable manner in that respect. In particular, I note that he knew that the wheelchair could have fitted in facing forwards if the footrests were removed but refused to say this to the respondent as he did not consider that he should have to do so.
5.9. In short, it was a simple matter to remove the footrests and put them back again when the complainant was brought to his destination. Had the complainant informed the respondent of this, he could have availed of the service in question. Therefore, it was clearly not impossible or unduly difficult for him to do so.
5.10. In all the circumstances of the present complaint, then, the complainant has failed to establish a prima facie case of discrimination of him by the respondent, including a failure to provide reasonable accommodation. The remainder of his submissions in that respect are redundant in that context and do not need to be considered by the Tribunal.
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 complainant has failed to establish a prima facie case of discrimination of him by the respondent on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts.
6.3. The complainant's case fails.
6th June, 2012