ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027603
An Airline Passenger
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 12/10/2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This complaint was submitted to the WRC on March 19th 2020 and, in accordance with section 25 of the Equal Status Act, 2000, it was referred to me by the Director General. Due to the closure of the WRC because of the Covid 19 pandemic, a hearing was delayed until October 12th 2020. On that date, I conducted a hearing and I made enquires and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant represented herself and was accompanied by her sister. No one attended on behalf of the respondent, although I am satisfied that they were properly on notice of the hearing.
The general practice in decisions under the Equal Status Act is to name the complainant and the respondent in the published decisions. However, because of the sensitive nature of this complaint, I have decided to anonymise the names of the parties. I will refer to the respondent as “Airline B,” and to their partner carrier, also featured in this complaint, as “Airline A.”
The complainant suffers from muscular dystrophy and uses a walking aid. She travelled from Dublin to a city in England on Friday, December 13th 2019 and returned on Monday, December 16th. When she booked her flights on the respondent’s website, she indicated in her online booking that she required wheelchair assistance because she has difficulty walking long distances and she cannot manage the aircraft steps. A wheelchair lift was provided for the complainant for her outbound flight; however, no lift was provided for her return flight at 19.10 on Monday, December 16th. As a result, the complainant said that she “had no choice but to climb the steep steps on to the plane.” She was assisted by a member of the ground crew, a minibus driver, who pushed her up the steps and helped her to lift her legs, while she supported herself by clinging on to the rails.
The complainant’s case is that she was discriminated against by the respondent, Airline B, and by their partner carrier, Airline A, because of their failure to provide her with the service she requested so that she could board her flight comfortably and free of humiliation.
This complaint is against Airline B. A separate complaint has been submitted against Airline A, reference ADJ-00027569.
Summary of Complainant’s Case:
Incident at the Airport
At the hearing, the complainant provided a copy of confirmation of her online booking with Airline B dated December 5th 2019. Airline A is identified on the booking confirmation as the airline operating the flights and the booking confirmation states: “Special request: 1 wheelchair for steps.” When she arrived at the airport in advance of her 19.10 return flight to Dublin on December 16th 2019, the complainant went to the check in desk to get her boarding pass. She informed the check-in crew that, because of her disability, she could not climb the aircraft steps. A crew member confirmed that she was aware of the wheelchair request but she said that a lift, known as an “ambi-lift” wasn’t available and that “there are only two or three steps and you should be able to manage.”
Contrary to the statement of the crew member that an ambi-lift wasn’t available, an employee of the special assistance service informed the complainant that a lift was available and she walked her to the check-in security area, where she got into a wheelchair. The complainant waited there for a member of the airport staff to push her to the waiting area for people with mobility issues.
As she waited in the wheelchair, the complainant said that another employee approached her and showed her a picture of the steps and asked her if she could climb them to board the plane. The complainant again explained that she couldn’t manage the steps and that she needed a lift. The employee replied that a lift wasn’t available. At this point, the complainant said that she was growing increasingly anxious and apprehensive at the thought of having to try to climb the five or six steps onto the aircraft without assistance.
A few minutes after this conversation, a member of the airport’s staff arrived and directed the complainant to a minibus to drive her to the plane. The complainant got out of the wheelchair and when the driver noticed that she had a difficulty stepping into the minibus, he lowered a ramp to assist her. The complainant said that she pleaded with the minibus driver to arrange a lift for her to embark the plane and he contacted a colleague on his radio. She said that she heard a voice responding, “We’re too busy, we can’t do it.”
The complainant said that she had no alternative but to climb the steps. She did so with huge difficulty while passengers and crew members looked on. She said that the minibus driver pushed her up the steps, pushing her buttocks and her back and assisting her by lifting her legs up the steps while she held onto the railings. She said,
“To say I was deeply humiliated by this ordeal would be a gross understatement. Two members of Airline B cabin crew witnessed all this from the top of the steps. Despite not coming to my aid, they expressed their shock at what they had witnessed. I wrote a complaint …while on board.”
A copy of this email was included in the complainant’s documents that she submitted in evidence at the hearing form. In the final section she described how she felt when she arrived in her seat:
“My legs were like weak and throbbing when I got up the steps and my back ached also. I’m sitting on the plane writing this at the moment and I honestly am so upset. The two air hostesses on the plane were very kind and compassionate. They promised me a lift in Dublin which was provided.”
The Rights of People with Disabilities when Travelling by Air
The complainant referred to paragraph (2) of the preamble to Regulation (EC) No 1107 of 2006 of the European Parliament and of the European Council, concerning the rights of disabled persons and persons with reduced mobility when travelling by air (“Regulation 1107/2006”). This provides that disabled persons should be not be refused transport on the grounds of their disability, except for safety or legal reasons and sets out what service providers must do before accepting bookings:
“Before accepting reservations from disabled persons or persons with reduced mobility, air carriers, their agents and tour operators should make all reasonable efforts to verify whether there is a reason which is justified on the grounds of safety and which would prevent such persons being accommodated on the flights concerned.”
Article 4 of Regulation 1107/2006 is titled, “Derogations, special conditions and information.” Paragraph 1 provides that an air carrier may refuse to accept a reservation from a disabled person or a person with reduced mobility,
“(a) in order to meet applicable safety requirements established by international, Community or national law or in order to meet safety requirements established by the authority that issued the air operator’s certificate to the air carrier concerned.”
The complainant also referred to the requirement for training for airport and airline employees so that providers can fulfil their duty to provide assistance to people with disabilities and those with reduced mobility. She said that when she communicated with the service provider at the Airport, it was apparent that she had a disability, as she was using a walking aid, but instead of “making a decent / fair effort to assist me” the person she dealt with gave her vague directions to the special assistance area.
Article 11 of Regulation 1107/2006 addresses the requirement for training and provides that,
“Air carriers and airport managing bodies shall:
(a) ensure that all their personnel, including those employed by any sub-contractor, providing direct assistance to any disabled person and persons with reduced mobility have knowledge of how to meet the needs of persons having various disabilities or mobility impairments;
(b) provide disability-equality and disability-awareness training to all their personnel working at the airport who deal directly with the travelling public;
(c) ensure that, upon recruitment, all new employees attend disability-related training and that personnel receive refresher training courses when appropriate.”
The complainant said that the manner in which she was treated at the Airport makes her doubt that any regard was given to this provision for staff training and disability awareness.
Communication Following the Incident
On December 17th 2019, the day after she returned from England, the complainant received a response from Airline B’s guest relations office to the email she sent while she was on the flight. The guest service team member wrote:
We truly appreciate the time you spent to let us know your experience.
I cannot explain or excuse the service failures your correspondence describes and I would like to apologise to you, sincerely, for the disappointment.
We have always been conscious of the importance of providing a reliable service and we expect the highest level of care from our Handling Agents. I am really sorry of not meeting your expectation by not being able to use the service that you specifically requested for (Sic).
Your feedback on how difficult the situation you endured during your travel with us is duly noted and I can assure you that we are always working to minimise the inconvenience.
We thank you for being our valued guest and for appreciating one of our airport crew who helped you a lot. Please despite the difficulties encountered on this occasion, we hope that you will still afford us the opportunity to welcome you on board our services for a more enjoyable experience in the future.”
On December 27th, the complainant received a reply from the customer relations office at the airport, informing her that her complaint had been raised with the service delivery manager of the company contracted to provide services to people with disabilities and reduced mobility at the airport. For the remainder of this document, I will refer to this company as “the wheelchair lift provider.”
On January 10th 2020, the complainant was informed that the customer services manager, “CSM,” from the wheelchair lift provider apologised and provided the background to what occurred. The CSM said that two options for assisting people with disabilities are used in the airport, an “ambi-lift” and an “avi-ramp.” She said that the preferred option is an avi-ramp, which is a mechanism that conveys a wheelchair up the steps to the aircraft. On December 16th 2019, the avi-ramp was damaged and not available for use. The CSM said that the movement controller was advised that the complainant was capable of walking up the steps. When the time came for boarding and the complainant said that she could not go up the steps unaided, the ambi-lifts were assigned to other jobs and the movement controller advised the minibus driver to proceed to the aircraft steps to wait for one. The CSM said that the minibus driver then helped the complainant up the steps.
THE CSM said that, from speaking with both staff, she felt that there was a “communication error whereby the movement controller was unaware of the level of assistance and that the passenger had been unable to ascend the minibus steps. If this information had been received, the decision could have been made earlier to use an ambi-lift instead of the planned minibus.” The CSM asked the customer relations official at the airport to pass on apologies from the movement controller and the minibus driver for the distress and discomfort that the complainant experienced. The customer relations official said that “this level of service falls very short of the service we expect to deliver” and that the airport had recently ordered another type of chair which can be used on the aircraft that was in use on the 19.10 flight from England to Dublin on December 16th. The CSM concluded her mail by saying that they airport would ensure that lessons can be learned to improve their services.
Response to the Service Providers’ Explanations
The complainant’s understanding is that her request for special assistance, which she requested from Airline B when she booked her flight, is automatically sent to the wheelchair lift provider at the airport in England and was verified on her booking confirmation email. In response to her complaint, she has been informed that there was a miscommunication with the wheelchair lift provider that resulted in an ambi-lift not being brought to the aircraft to help her to embark. She said that her experience was not a failure to communicate, but “point blank discrimination and humiliation,” starting with the ground crew member at the airport who sought to tell her what she could and could not do in respect of her disability. The crew member confirmed that she was aware of the request for special assistance, but she said that because there were “only two or three steps,” the complainant “should be able to manage.” The crew member printed the complainant’s boarding pass without offering any reasonable accommodation and reluctantly pointed her in the direction of the special assistance team.
On February 7th 2020, the complainant sent ES1 forms to Airline A and Airline B, seeking an explanation for how she was treated as she boarded her flight on December 16th 2019. While she received a response from Airline A, Airline B did not reply.
In summary, the complainant’s case is that she purchased a flight from Airline B, who had an agreement with Airline A to operate the flight from the airport in England to Dublin on December 16th 2019, and that, as the company with whom she entered into a contract to provide her flights, Airline B is responsible for ensuring her safe transfer onto the aircraft. She seeks redress in accordance with Section 27 of the Equal Status Act 2000.
Summary of Respondent’s Case:
The respondent did not attend the hearing of this complaint.
Findings and Conclusions:
The Legal Framework
The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is clearly set out at Section 4(1) of the Equal Status Act 2000, “the Act:”
(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.
Subsection (6)(b) tells us that a “service provider” is,
(b) the person responsible for providing a service in respect of which section 5(1) applies.
Section 5(1) is the opening section of Part II of the Act, titled, “Discrimination and Related Activities.” This section specifically addresses the disposal of goods and the provision of services:
(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.
It follows therefore that, in accordance with these objectives, as a person with reduced mobility, when accessing the services of an airline, the complainant is entitled to be provided with reasonable accommodation, in her case, the use of a wheelchair lift, to enable her to travel by air safely and in comfort.
Section 46 of the Act considers the specific application of the legislation to ships and airlines:
(1) The provisions of this Act shall extend to and apply in respect of any ship or aircraft registered in the State that is operated by a person who has a principal place of business or ordinary place of residence in the State, whether or not the ship or aircraft is outside the State.
(2) An act which—
(a) is done on or in respect of such a ship or aircraft while subject to the jurisdiction of a country outside the State, and
(b) is required to be done to comply with the law of that country,
shall not constitute discrimination for the purposes of this Act.
Regulation 1107/2006 clarifies who is responsible for the provision of assistance to people with reduced mobility at airports and on airlines. Paragraph 16 of the Preamble indicates the process for dealing with complaints, which may be escalated to the regulatory body for the airline industry in each EU State. For my part, as the adjudicator in this matter, my jurisdiction is under the Equal Status Act. My responsibility is to enquire into this complaint as a potential breach of Section 4(1) of the Act regarding discrimination against a person with a disability and, to determine if there was a refusal or a failure by the respondent to do all that is reasonable to accommodate the needs of the complainant, so that she could travel safely and in comfort.
Consideration of the Facts
As there was no response to this complaint by Airline B, I must rely on the evidence of the complainant to reach a conclusion. To summarise, the complainant purchased an airline ticket from the respondent for a flight operated by Airline A, a partner carrier. As she waited to board her flight from England to Dublin on December 16th 2019, she was not provided with assistance to embark the aircraft using an ambi-lift or an avi-ramp. Instead, she was pushed up the steps by a minibus driver, causing her pain, distress and humiliation. Based on these facts, it is clear to me that the complainant has established that, contrary to Section 4(1) of the Act, she was discriminated against on the disability ground.
I understand that the provision of assistance to people with disabilities at an airport is designated, under Article 8 of Regulation 1107/2006, to the managing body of the airport. An airline passenger however, has no contractual relationship with the managing body of an airport and they rely on the airline from whom they purchase their flight, or the airline operating the flight, to provide the assistance that they require. It is clear to me that, in the case of an airline passenger, it is the airline who, as set out at section 5(6)(b) of the Act, is “the person responsible for providing a service,” including any assistance that may be required to board and disembark an aircraft.
If Section 4(1) of the Act provides that discrimination occurs when a service provider fails or refuses to do all that is reasonable to accommodate the needs of a person with a disability, it follows that, for discrimination not to occur, a service provider is required to act affirmatively to do all that is reasonable to accommodate those needs. Accepting that the provision of special assistance is designated to the managing body of an airport, the responsibility of an airline is “to do all that is reasonable” to ensure that, if their customer requests special assistance, that it is provided. This must mean more than simply setting up an electronic communication with the contracted provider. It is my view that it would not have been unreasonable, nor would it have resulted in any significant cost or inconvenience, for Airline B to ensure that their partner carrier had in place a process to check that, where a wheelchair lift is requested on a ticket, that this assistance is available.
I find that Airline B failed to do all that was reasonable to ensure that the complainant received the service that she requested and that this failure caused her unnecessary distress, inconvenience and humiliation. I find therefore, that her complaint that she was discriminated against on the ground of her disability is well founded.
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.
For the reasons set out above, I have decided that the complainant was discriminated against contrary to Section 4(1) of the Equal Status Act 2000 – 2015. In terms of redress, Section 27(1) of the Act provides that:
…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the prohibited conduct concerned; or
(b) an order that a person or persons specified in the order take a course of action which is so specified.
I make an order that the respondent, who I have referred to in this decision as “Airline B,” pay the complainant €2,000, as a measure of compensation for the discomfort and humiliation she suffered. I further order the respondent to put in place a process to check that, at boarding and disembarking, where a passenger with a disability or reduced mobility has requested assistance, that such assistance is provided.
Dated: 15th December 2020
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Discrimination, disability, airline, aircraft