Equal Status Acts 2000 to 2011
(with Ms. Andrea Reynolds, advocate services)
A Bus Service
(Represented by in-house Solicitor)
Case ref: ES/2011/0077
Issued: 29 June 2012
Equal Status Acts 2000 to 2004 - Discrimination - Disability - Failure to provide reasonable accommodation- Provision of Goods and Services - Prima Facie Case
1. Delegation under the Equal Status Acts 2000 to 2011
1.1. A complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 4 May 2011. The respondent was notified of this complaint in accordance with the Acts on 19 February 2011. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 7 March 2012. An oral hearing, as part of the investigation was held in Dublin on 25 May 2012. The parties have been redacted as the complainant is a person with a disability.
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground. The complainant submitted that a named bus service ("the respondent") discriminated against him by, inter alia: not utilising the kneeler; not pulling up at proper stops; driving erratically and not waiting until the complainant has managed to sit down; not making rest stops; and not providing him with assistance despite requests for such assistance. This treatment is on-going and the complainant submitted that it is not only affecting him but also older persons and persons travelling with buggies and prams.
3. Case for the complainant
3.1. The complainant is a gentleman with a number of disabilities. He submitted that he has arthritis in his knees which makes it difficult for him to negotiate steps. He also has a hernia that means that certain types of seatbelts are uncomfortable for him to wear. He also suffers from spina bifida occulta that causes problems with his pelvis and feet. He has also recently been diagnosed with diabetes mellitus 2. This means that he needs to drink lots of liquids and use the bathroom regularly.
3.2. The complainant is a frequent service user since 2005. He submitted that he has never been denied a service in circumstances where the service has not been full. His case is that unless drivers know him he has to ask for said drivers to lower the kneeler for him. It is the complainant's case that 95% of the drivers who know him lower the step without him asking. The remaining 5% are part of a 'culture of disobedience'. The complainant's position is that the kneeler should be lowered as a matter for practice and the fact that he has to request for it on occasion means that he is not enjoying equal access with other passengers. His case is that he has been made to feel a 'bloody nuisance' as he is continually forced to request that the kneeler is lowered. He stated that when the kneeler has not been used or the driver has not pulled up properly to the curb, he has to manoeuvre himself onto the coach and to pull himself up.
3.3. The complainant chooses to sit further back of the bus as he prefers the lap seatbelts that are used in those seats. The seats that are located immediately behind the driver have shoulder seatbelts that can cause the complainant discomfort due to his hernia. It is his case that some drivers do not wait until the complainant has sat down and that this is potentially dangerous to him and other passengers. The complainant also stated that he always waits until other passengers have boarded the bus as a courtesy because he is slower boarding the coach than others.
3.4. The complainant also referred to an incident whereby a named driver who had not parked properly at the curb also was unable to operate the kneeler. The complainant stated that this meant that he had awful difficulty on boarding and that his hands had gotten dirty. Also when the driver reached his destination the complainant had to reverse out of the bus because the driver did not know how to lower the kneeler. The complainant stated that he could not understand why the drivers did not implement the training that the respondent had stated that all drivers received.
3.5. The complainant was sceptical as to why his requests for technical reports as requested had not been agreed to. He stated that the respondent occasionally referred to the kneeler system as being out of operation as a reason why the kneeler could not be used during some of the complainant's trips and the complainant stated that if this genuinely was the case then such reports could backup the respondent's case.
3.6. The complainant also stated that in the past he had written to the respondent and requested special assistance. He had done so when travelling with his elderly mother who is a wheelchair user. He stated that despite having been assured that assistance would be available to the complainant and his mother he discovered upon querying the matter with the drivers that they knew nothing about his request for special assistance. Also, the complainant had asked for assistance to be available to him on occasion when he was travelling with luggage and stated that he was assured that such assistance would be available at his destination. Upon arriving at his destination he had to take his own luggage out of the hold. The complainant did so with difficulty.
3.7. Furthermore, the complainant submitted that he had noticed that drivers no longer stop on some routes for what would have been a traditional restroom break. The complainant stated that but for the break time that he has changing routes he would have had serious difficulty with this. The complainant accepted that he had not ever requested a stop for such purpose to be made. He also stated that he often had to queue in a named station in order to get the key for the disabled toilet and made some suggestions around this issue.
4. Case for the respondent
4.1. The respondent rejected all of the complainant's claims. It was submitted that the respondent has engaged with the complainant on a number of occasions and where possible assistance to complainant has been provided. It was accepted that the complainant had on one occasion been treated in an unacceptable manner due to the fact that a driver had not followed company protocol re bus stops and because he was not familiar with the technology on a bus that the driver had never driven before. This driver had been disciplined for the unauthorised manner in which he had parked at the stop and the respondent had apologised for this incident.
4.2. It was submitted that it is best practice procedure for drivers to lower the kneeler at all stops. It was accepted that not all drivers did this. It is a disciplinary matter if a driver refuses to lower the kneeler upon request and also if a driver does not pull up at stops in the correct manner. It was accepted that there had been a breach of the respondent rules in relation to a named bus stop. However, as soon as the matter became known to the respondent disciplinary action had been taken, and the bad practice stopped.
4.3. The respondent rejected that the complainant has been discriminated against on the ground of his disability or on any other ground. He has not been denied reasonable accommodation. It is not unduly difficult for the complainant to request the use of the kneeler. Furthermore it was submitted that the complainant is actually not quite as restricted in his movement as he was suggesting at the hearing. It was submitted that the complainant had received special treatment on a number of occasions - including taxi transfers, compensation for soiled clothing, etc and that staff had met with the complainant many times to address his issues. It was accepted that at times coaches may have technical difficulties concerning a kneeler and that in order to provide a service to the greater public such coaches may be in use. It was submitted that as a general rule kneelers are operational and that difficulties may occur as drivers may not used to using the technology. The respondent is doing its utmost in ensuring that drivers get all the training that they need and will provide additional training when needed. It was also accepted that in certain circumstances due to stock being out of circulation or because of staffing issues drivers are asked to drive vehicles that the may not be as familiar with. The aim of the respondent is to ensure an uninterrupted service to the general public.
4.4. All drivers have received disability awareness training. It is a disciplinary matter if a driver refused to provide reasonable assistance to a person who requests it. It was submitted that the complainant's own evidence supports that in most parts the service is good. However it was accepted that incidents do occur but that such incidents are not disability discrimination.
4.5. It was submitted that 'micro breaks' have been withdrawn because the public prefers to get to their destination as quickly as possible. It was submitted that the micro breaks were extending the journey due to the fact that passengers would also queue for food, etc. Any passenger indicating that they had an urgent need for a restroom break would be facilitated.
4.6. It was submitted that the respondent will not release technical reports concerning the maintenance of its stock to anyone other than the statutory bodies who are entitled to review them. Seatbelts are part of the warranty of the vehicles and they cannot be altered without affecting the warranty. The respondent is running a pre-booking pilot scheme where passengers requiring special assistance can do so but it was pointed out that there are challenges concerning this as not all bus stops are manned in the same manner as railway stations.
4.7. It was submitted that the complainant had not established any facts from which an inference of discrimination can be drawn. It was submitted that different treatment does not necessarily mean that the treatment is less favourable. The difference of treatment that the complainant refers to has a nexus with his disability.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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.
5.2. Having heard the full facts of this case I am satisfied that the matter referred to this Tribunal is in its entirety a customer service issue. There are no facts from which I can infer that the complainant has received less favourable treatment because he is a person with a disability. I note that he would prefer the treatment that he has received to be different - and I heard a number of suggestions that he made to the respondent in this regard - but such policy and customer service matters are clearly not a matter for this Tribunal. The complainant has been afforded the same treatment as any other passenger is, has been or would be. In addition, it is clear that the complainant has also been provided with reasonable accommodation.
5.3. Failure to provide reasonable accommodation refers to a situation whereby a service user with a disability is unable, or it is unduly difficult for him/her, to avail of the service on offer because the disability provides an obstacle restricting the person. In such circumstances a service provider has a duty to provide reasonable accommodation, that is, different treatment to a service user (subject to exemptions). Such treatment, by its very nature, is different from the mainstream service provision as it may entail special treatment, facilities or assistance. It is the complainant's own evidence that he has never been refused a service or that he was unable to avail of the service. I accept that he has had difficulties on some journeys. However, while such difficulties should not occur, the complainant has clearly been able to overcome them with the assistance of the respondent. It may not have been perfect but the complainant has been able to avail of the service. I am also satisfied that the respondent has taken action where an issue has been brought to its attention.
5.4. Reasonable accommodation ought not to be confused with best practice and the test for the provision of reasonable accommodation can be reached in circumstances where the treatment provided is sufficient to assist the person with a disability over the threshold of whatever obstacle that is the reason obstructing that person from availing of a given service. It ought to be clear that many individuals who have more visible disabilities than the complainant go about their daily lives without any requirement for special treatment or assistance and that it is equally important that providers of goods and services do not impose special treatment on persons who do not require it.
5.5. While I support the respondent in its best practice policy of having the kneeler lowered at each stop as a matter of practice, I do not accept that it was unduly difficult or impossible for the complainant to request for it to be lowered. While I do accept that the complainant has faced difficulties in circumstances where respondent policies have been breached - that is where an employee of the respondent has refused to lower the kneeler - I am satisfied that the respondent has taken appropriate action in relation to same.
5.6. I also note that the respondent made it very clear that all drivers would make a bathroom stop upon request. It is necessary however for a passenger to inform the driver of such need.
5.7. The issue of erratic driving is a health and safety matter and outside this Tribunal's jurisdiction.
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of less favourable treatment on the disability ground.
6.3. The complainant has not established a prima facie case of failure to provide reasonable accommodation.
29 June 2012