THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
(represented by Mr Michael Kinsley B.L. instructed by Northside Community Law Centre.)
A Coach Hire Company
(represented by Mr Frank Waters)
File reference: EE/2012/0005
Date of issue: 20 December 2013
Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation,
1.1 The case concerns a claim by Ms. A (hereinafter referred to as ‘the complainant’) that she was subject of discrimination by the A Coach Hire Company (hereinafter referred to as ‘the Respondent’ ) on the grounds of disability contrary to section 3 of the of the equal status Act 2000 as amended by the Equal status Act 2004 (hereinafter referred to as ‘the Acts’) in its’ failure to provide her with reasonable accommodation, pursuant to Section 4 of the Acts when she accessed the respondents services. The complaint also submitted that the treatment of her by the respondent was harassment contrary to Section 11 of the acts. The complainant submitted that the respondent in providing services had failed to meet its obligations under the Acts.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 13 January 2012. On 30 November 2012, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Peter Healy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a hearing was held on 20 November 2013 as required by Section 79(1) of the Acts.
Summary of the complainant’s case
2.1 The complainant has a mild intellectual disability and has been diagnosed as having an anxiety disorder. The complainant was granted a ‘Companion Free’ Travel Pass by the Department of Social protection which allows her to be accompanied by a travel companion without charge on particular services.
2.2 On 2 October 2011 the complainant took a bus operated by the respondent from a rural location to Dublin City Centre. The complainant submitted that she used this service on a regular basis but almost always when accompanied by another person. This was one of the first occasions when she was travelling by herself. She says that she recognised the driver as someone that she had presented her Travel Pass to on previous occasions.
2.3 The complainant submits that she stepped on to the bus and presented her travel pass and relevant I.D. card to the driver, both of which were contained in a small wallet. She says that the driver took the wallet from her, removed the pass from the wallet, proceeded to look at the front and back of the travel pass and at the Complainant. The complaint found this kind of close examination of the pass distressing. At the hearing the complaint gave the following account of the verbal exchange that then ensued. The driver asked her “Where did you get this?” She responded “I have had it since I was 16” and the Driver then asked “Why?” The complaint submits that the at this point she told the driver that she had a disability and that the driver then asked her “what’s that” and the complaint responded “a learning disability”. The complaint submits that after a long pause the driver asked her if she was going to take a seat. She did so and completed her journey.
2.4 The complainant submits that she felt intimidated, anxious and nervous as a result of the questioning, to such a degree that she became flustered and dizzy. The complainant submits that the door of the bus remained open during the exchange with the driver. She submits that she felt that the door remaining open was intimidating. The complainant submits that passengers seated on the bus were looking at her and she felt humiliated. The complainant stated at the hearing that none of the other passengers would have been close enough to hear the conversation with the driver. The complainant took her seat and completed her journey, however she decided to sit in the seat behind the driver as she was worried that the driver would approach her again.
2.5. The complaint submitted that the above incident had a very negative effect on her wellbeing for a number of weeks resulting in increased levels of anxiety requiring medication.
2.6 The complainant seeks to rely upon a comparator with a physical disability and they submit that due to the nature of the complainants’ disabilities which are not obvious that the complainant was treated differently to a person who would present with a different disability.
Summary of the respondent’s case
3.1 The respondent rejects that it discriminated against the complainant and rejects the assertion that the driver enquired as to the nature of the complainants’ disability. The respondent agrees with the majority of the complaints account of events with the exception of
the manner in which the complainant presented her Travel Pass
the two alleged questions by the driver enquiring as to the nature of the complainants’ disability, which the driver denies.
3.2 The respondent submits that the complaint stepped onto the bus presented her wallet so that her I.D. in such a manner that her I.D. card was not visible. They submit that this necessitated the driver taking the wallet from the complainant in order to properly examine the pass and the ID cards. The respondent submits that the driver thought that the complainant was about seventeen years of age and that it was unusual for someone of that age to be traveling alone, on such a pass, as they would usually be the companion rather than the holder of the pass.
3.3 The respondent submits that the door of the bus must remain open while the hand break is engaged and that this is a health and safety feature of the bus.
3.4 The respondent states that as part of its provision of travel schemes provided by the Department of social protection that it is obliged under the terms of those schemes to ensure that drivers rigoursly check all travel pass to detect possible fraud. The respondent submits that all drivers are very mindful of this requirement due to the high level of monitoring by internal and external inspections. They state that with regard to the incident in question the driver was presented with a companion pass and he was obligated to ensure that the person travelling was indeed the pass holder and not a companion who is not entitled to use the pass in the absence of the pass holder.
3.3 The driver attending the hearing of this complaint and gave evidence that when the complaint presented the pass that the I.D. card was obscured from view. He says he did use the phrase “ How did you get this?” . He submits that he used this phrase only with the intention of ascertaining if the complaint was the pass holder and not to inquire if she had a disability which he maintains he would never do as it is in his view completely unacceptable.
Conclusions of the Equality Officer
4.1 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 disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2) provides that: as between any two persons, the discriminatory grounds ... are .. (g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”
4.2 Harassment is defined in section 11 of the Acts as "any unwanted conduct related to any of the discriminatory grounds" that has "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Furthermore, such unwanted conduct may consist of "acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
4.3 Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.4 Both parties are in agreement that the complainant was suffering from a disability and that the complaint accessed the service. The parties also agree as to the vast majority of the detail of the incident in question with the exception of the prohibited conduct, which is if the driver questioned the complainant about her disability before he allowed her to access the service.
4.5 In the absence of an I.D. card, I accept that it was standard practice for the driver to take the pass from the complainant and examine it. I accept that it was reasonable for the driver to ask questions to establish the identity of the person presenting the pass. I find that this does not constitute harassment under the Acts.
4.6 I accept that the door of the bus remained open because the hand break was engaged and that it was not intended to intimate the complainant. I find that this does not constitute harassment under the Acts.
4.7 The complaint submits that she felt so dizzy during the conversation that she feared that she wold fall out of the door of the bus. She submits that the conversation, which by her account consisted of no more then six very brief sentences, took two minutes. I must prefer the drivers assessment that the conversation (conforming to the complainants account) could only have taken at most 40 seconds. A written complaint (9 days after the incident) to the respondent from the complainants’ mother detailing specifics of the conversation does not make reference to the driver directly asking the complainant if she had a disability or what it was.
4.8 Having heard direct evidence for the driver whom I found to be reasonable and consistent, I accept that he used the phrase “ How did you get this?” in a colloquial sense as to ascertain the identity of the pass holder and that it was not intended to be invasive as the complainant took it to be. The respondent company gives very definite written instruction to drivers that they are to “ Ask no more questions “ once the identity of a pass holder has been established. The driver gave a written account of the incident to his employer in October 2011 which was consistent with his evidence given at the hearing. Taking into account all written and oral evidence I prefer the drivers’ version of events. I found the driver to be a cogent witness and, on the balance of probabilities, I prefer his recollection of events in relation to this issue and therefor find that the prohibited conduct did not take place.
4.9 The Acts sets out the following in relation to reasonable accommodation.
4.—(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, 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.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
In this case has the complainant has been accessing the service in question for an extended period of time and again accessed the service after the incident in question.
The reasonable accommodation sought by the complainant is that she be allowed to access the service without being questioned by the respondent regarding her disability. I find that that situation already exists and therefor the issue of reasonable accommodation does not arise. The respondent company has in place a system where all that is required of pass holders in order access the service is that they present a pass for inspection by the driver. That system prohibits drivers from asking any questions other then establishing the identity of the pass holder. In this case I accept the drivers account and that he was exercising standard practice that would be applied to all pass holders. The complainant in this case accessed the service.
4.10 As I prefer the drivers version of events and I accept that the phrase “where did you get this was “was not discriminatory. I accept that the manner of the examination was of the pass was not harassment and the matter of the bus door being left open do not constitute harassment. I am satisfied that the driver is a reasonable person with significant experience of dealing with pass holders and detecting fraud and that he genuinely believed that it necessary to ask the complaint how she got her pass on the basis of her age rather then in relation to her disability. I find that the complainant was not subject to harassment by the respondent.
5.1 .In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, 1998 to 2008. I find that
(i) the complainant has failed to establish the facts from which it may be presumed that the respondent discriminated against her on the grounds of disability.
(ii) the complainant has failed to establish the facts from which it may be presumed that she was harassed by the respondent on the ground of disability.
20 December 2013