ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008302
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bus Passenger | A Bus Company |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00010950-001 | 25/04/2017 |
Date of Adjudication Hearing: 08/12/2017
Workplace Relations Commission Adjudication Officer: Marian Duffy
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant contends that the respondent discriminated against him on the disability ground contrary to the Equal Status Act 2000, in relation to access to a bus service. |
Summary of Complainant’s Case:
The complainant has a disability and he holds a free bus pass. He works in Dublin and travels there by Bus Éireann from his home in Co. Meath every day. There was a strike in April 2017 and Bus Éireann was not running the service. The complainant used the respondent bus service to travel to Dublin. He said he had a difficulty getting on the bus in the evening time even though he was first in the queue. The driver told him that only paying passengers and regular passengers were allowed on the bus and when these passengers boarded if there was space he was allowed on. He said on a number of occasions he had to wait a half an hour for the next bus. The complainant accepted that there was a three-week strike Bus Éireann strike in April 2017 and that the respondent bus company was very busy during that period. The respondent company accepted his free bus pass without any question. During the three week period, there were 6 occasions which he had to wait until the regular passengers had boarded and on four of these days he got on the bus and only on 2 occasions he had to wait for the next bus. He submits that he was discriminated against on the disability ground. |
Summary of Respondent’s Case:
The respondent denies that the complainant was discriminated against because of his disability. He stated that there was a three week Bus Éireann strike in April 2017 and as a result there was a sudden increase in the passenger numbers seeking to use their bus service. It was submitted that the respondent is a private bus operator and accepts passengers with the free travel in accordance with an agreement with the Department of Social Protection. During the strike, the company, due to the increased demand for places on the bus, decided to hold seats for regular customers on the morning buses and to allow regular customer board first on the evening buses departing from Dublin. This policy of prioritising regular customers was applied regardless of whether the customers were paying or had free bus passes. The respondent submitted that these measures had to be put in place to protect his regular customers. Ms. A. gave evidence that she was a regular passenger on the respondent’s bus for 30 years and for the last while she has a free bus pass. She said she has no difficulty in using her free bus pass on the respondent’s bus service. She said that during the Bus Éireann strike there were a lot of extra passengers looking for a bus service both morning and evening. She said that the bus driver allowed the regular passengers on first including passengers with free travel passes. Mr. B who has a disability gave evidence that he is a regular user of the respondent’s bus service for the last seven years. He said he is a free bus pass and has no difficulty travelling at any time. One of the respondent’s bus drivers give evidence that during the bus strike there a lot of passengers trying to use the service. He said that the respondent had given in an instruction that regular passengers should be accommodated on the bus first regardless of whether they were paying passengers or had free bus passes. Then passengers who were not regulars were allowed on if there were seats available after all the regulars had boarded. On some occasions the bus was full and passengers had to wait for the next bus. He said that there could have been 10 or 12 passengers who couldn’t get on the bus over the whole evening but they usually got the next bus. |
Findings and Conclusions:
The complainant contends that he was discriminated against by the respondent in relation to access to the bus service contrary to the Equal Status Act 2000. 3.—(1) ” For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) (in this case disability) ……… (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) 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”),”
Section 38A (1) of the Equal Status Acts 2000-2015 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 raised. Section 38A. provides—(1)” 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.” The complainant must establish that he was treated less favourably than another passenger without a disability or with a different disability in similar circumstances. I accept that the respondent had to put measures in place during the bus strike to protect his regular passenger base otherwise his business may suffer when the strike was over. He prioritised boarding for regular passengers to ensure they would get a seat on the bus. It is clear from the evidence that passengers with a disability or with a free bus pass are accepted on the bus without any difficulty. The complainant was treated in a similar manner to all non-regular customers, he had to wait until the regular passengers had boarded. Therefore, he was not treated less favourably than another non-regular passenger was treated in similar circumstances. I find that the complainant has failed to establish a prima facie case of discriminatory treatment on the disability ground. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I have concluded my investigation and I find that the complainant has not established a prima facie case of discrimination on disability ground. Therefore, this complaint fails. |
Dated: 6.4.18
Workplace Relations Commission Adjudication Officer: Marian Duffy
Key Words:
Equal Status Acts 2000 - 2015, disability ground, less favourable treatment, failure to establish a prima facie case. |