Complainant

Respondent

Parties

David  Tyrrell

North Link M1 Ltd

Representatives

  In person

Sinead Morgan , DAC BEACHCROFT

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067571-001

18/11/2024

This is a complaint brought pursuant to the Equal Status Act 2000 for discrimination based on disability arising out of an incident that took place on the M1 Toll Plaza on 2 October 2024.

Complainant Evidence

The Complainant gave evidence under affirmation as follows:

·        The Complainant is a person with a disability who drives a car that is modified.

·        He applied for and received a Disability Toll Exemption Scheme (DTES) disc which is attached and visible on the (his) right lower side of his front windscreen.

·        He was driving, with a passenger, on the M1 motorway driving south and reached the M1 Toll Plaza.

·        He approached an unmanned toll and his registration number appeared on the screen however the barrier did not open.

·        He pressed the operator button and spoke to a person in the control room.

·        She asked him for his registration number which he gave, even though she should have been able to read his registration number from the screen that he (and he presumed she) was looking at.

·        She said that his registration number was incorrect but then read out what his correct registration number was.

·        He told her, “If you know my number why you are asking for it?”

·        She said, “Don’t be so smart and you shouldn’t be in this (unmanned) lane anyway.”

·        He asked to be allowed to go through and the barrier was lifted, and he drove through.

·        He submits that as a disabled driver he should be allowed to use unmanned toll lanes just as non-disabled drivers do.

·        He says that there should not have been a conversation with a member of Respondent staff about his exempted status and that this disclosed his disability to his passenger which he did not want.

·        He was delayed by the Respondent which would not have happened but for his disability which does not happen to non-disabled drivers.

·        The Respondent staff member spoke to him and treated him in a derogatory way, which amounted to harassment based on his disability.

·        He submits that the Respondent discriminated against him by:

(A)   The failure of the automated system that should have identified his clearly visible DTES disc to allow the barrier to lift automatically and

(B)   How the Respondent staff spoke to him and treated him and delayed him.

·        When he returned home, he emailed the Respondent to complain. He particularly objected to being told that he “shouldn’t be in this lane”

Under cross examination the Complainant said:

·        The toll booth recognised his registration number plate. It came up on the screen. The DTES system should identify the presence of a DTES disc and if it does not it should cross reference the registration number with the fact that he is an exempted driver under DTES.

·        The automated system did neither and the operator then made matters worse by how she dealt with him.

·        He accepted that he had not read the DTES website

·        He does not accept that the time that he took to go through the toll (1.47 minutes) was not excessive. It normally takes seconds to go through a toll. The delay occurred because of how the Respondent dealt with his disability. If he was a non-disabled driver, he would not have been delayed at all.

·        He did not accept that at times the automatic registration recognition system does not work. He did not accept that dirt, rain, or the angle of a vehicle can result in the registration number not being correctly identified. He said that in his experience that has not happened. He said that his registration number was correctly identified because he saw it on the screen.

·        He did not accept that there was a digit missing in the number on the screen and control room.

·        He disagreed with the evidence of Louise McMullen who was the control room operator who dealt with him that day, who denies saying “don’t be smart” or “you’re in the wrong lane” He disagreed with her evidence which was that she told him (in response to him being annoyed with her for being delayed) “if you use the operator lanes in future, it’ll be quicker for you.”

End of Complainant’s evidence

Preliminary Application

The Respondent raised a preliminary application that a WRC complaint form was not filed by the Complainant and that all he did was copy the ES1 form to the WRC. The Respondent submits that the WRC does not have jurisdiction to investigate this complaint.

Respondent Evidence

Louise McMullen, the control room operator on the day gave the following evidence under affirmation:

·        She has worked with the Respondent for 12 years.

·        Her job is to monitor 16 lanes on the plaza.

·        Part of her responsibilities is to respond to calls from drivers at unmanned toll plazas. Usually this is when the barrier hasn’t lifted because of incorrect payment or if the car registration number is not recognised on a tag lane. But the calls can be any reason including emergencies.

·        Once the Respondent received an email complaint from the Complainant later that day the incident was investigated and for that reason she had and has a clear memory of what happened.

·        The bell sounded from an unmanned booth and she picked up the call. As she would normally say, she said “hello how are you doing there?”

·        The Complainant said that the barrier hadn’t lifted.

·        She asked him if he had paid the money because she did not know that he was exempt. From the control room, all she can see is the registration number on a screen. She doesn’t have a visual of any car. So she could not see his DTES disc.

·        That is why the DTES guidelines recommend the use of manned toll lanes because the tool booth operator can see the disc and lift it without asking any questions. But she was not able to see his DTES disc. But at that stage she had no reason to think that he was an exempted driver.

·        However, what she could see was his registration number on her screen – which was picked up from the automated camera system. She realised that there had to be a digit missing. The number (1 or 2) before the D was missing. That was why she asked him to call out his number. When he answered, she quickly inputted his registration number onto the Motor Tax system, and from this he came up as an exempted driver.

·        This took only a minute to do but she accepts that the whole process before lifting the barrier did take 1.47 minutes.

·        He seemed annoyed with her whether it was the delay or because she asked him to state his registration number (which he thought was correctly recorded on the screen, but it was not) but she did not say “don’t be smart” because she would never say such a thing anyway and her supervisor was working right beside her.

·        But when he complained about being delayed she accepts that she did say “if you use the operator lanes in the future, it’ll be quicker for you.” That is because it would be. The operator beside the car has a visual that the control room doesn’t have. If a DTES disc can be seen the booth operator can lift the barrier manually straight away, with no need for any discussion. That is why the guidelines are there because at times, in poor weather conditions, the plate recognition system is not correct, as occurred here. Nine times out of ten the system would be accurate but in this case, for whatever reason, the system missed a digit and because of that the system could not cross reference him as being a DTES disc holder and because he was at an automated booth, there was no person beside him to override that.

·        No discrimination occurred. The guideline for disabled drivers to use manned lanes is to assist them in a non-interventionist way – so that if a registration number is incorrectly read by the system that a staff member can quickly see a DTES disc and lift the barrier without any questions being asked.

·        As the Complainant ignored the guidelines, he refused the accommodation that is offered to disabled drivers when the plate recognition system occasionally misreads a number plate.

End of Respondent Evidence

On behalf of the Respondent, it is submitted that the Complainant has not made out a prima facie case of discrimination. It is submitted that the guideline - that DTES disc holders use manned lanes  - is to provide reasonable accommodation to disabled drivers so that if a  registration plate is misread by the system, a toll booth operator beside the car, can see the DTES disc and  s/he can manually lift the barrier.

Jurisdiction

The WRC complaint form is not a statutory form and the non-reliance on the WRC complaint form template does not create a jurisdictional challenge for the WRC to adjudicate a complaint. I accept that the correspondence that was sent to the WRC was an email and an attached ES1 form. Applying County Louth VEC v. Equality Tribunal [2009] IEHC 370 I am satisfied that the detail set out in the ES1 form is sufficient to put the Respondent on notice of the complaint and that the Respondent was not prejudiced by the Complainant not using the WRC complaint form.

As the ESA statutory time limits were observed and there being no other jurisdictional matters arising, I am satisfied that I have jurisdiction to investigate this complaint.  

Equal Status Acts 2000 [ESA]

The ESA prohibits discrimination in the provision of a service.

Discrimination under the ESA is prohibited on ten specific grounds. Disability is one of the protected grounds.

The Respondent does not contest the fact that the Complainant is a person with a disability and that to drive, he uses a car that is modified for his disability. I am satisfied therefore that the Complainant is a person with a disability who uses a modified car to drive.  

Discrimination on grounds of disability occurs when a person is treated less favourably, in comparison to another, because the Complainant is a person who has a disability and the other person is not.

To prove discrimination the Complainant is required to prove prima facie evidence that he was treated adversely by the Respondent as compared to a person who does not have a disability.

Another type of discrimination complaint is the failure to make reasonable accommodation for a person’s disability. Although this is not the complaint made out by the Complainant, the duty to provide reasonable accommodation to persons with a disability has relevance for this investigation.

Findings

It is accepted that under Schedule 2 of the National Roads Authority Toll Bye Laws for the M1 Motorway made pursuant to the Roads Act 1993 there are five categories of vehicle that are exempt from the obligation to pay road tolls.  One of the exempted categories is specially adapted vehicles driven by disabled drivers.

The Disability Toll Exemption Scheme (DTES) allows free passage through all national toll plazas subject to producing evidence of exemption. Disabled drivers register with DTES and obtain a disc that is attached to the bottom right of their windscreen.

It is common case that the Complainant is an exempted driver under the DTES and that his car had a DTES disc on the bottom right of his car windscreen.

The DTES guidelines state that “If the Manned-lane signal is illuminated, then use this lane as there will be a Toll Operator in the lane to assist you.” And “If the Manned-lane signal is not illuminated, the use one of the Automatic lanes available.”

I accept from this that the Respondent accepts that DTES drivers are encouraged to use the manned toll lanes as opposed to using automatic toll lanes. I accept that this guidance is not issued to non-DTES drivers and in that respect the treatment of drivers with a DTES disc (ie disabled drivers) is different from non-disabled drivers.

However difference in treatment does not necessarily mean that the treatment is adverse.

The evidence of the Respondent, which was not contested, is that the purpose of guideline is that sometimes an automatic toll booth does not correctly identify the car registration of all cars. The system misreads the plate. This can occur due to poor weather conditions or dirt being on the car or registration plate and the registration plate is incorrectly read by the digital reader. At times a digit can be missing or sometimes the whole number is incorrectly read. In such circumstances there is no way that the automated system can cross reference the registration number with the fact that the driver is DTES registered and the barrier will not open.

To avoid this happening and to allow for a freer flow of traffic DTES drivers are encouraged to use manned toll lanes where possible to enable a toll operator to visually identify the presence of a DTES disc on the driver’s windscreen and the barrier can then be manually raised.

I am satisfied that the guideline and how it is operated exists to reasonably accommodate the needs of a disabled driver and had the Complainant followed the guidelines he would have attended the manned-lane and when the automated system mis-read the registration plate and the barrier failed to open a Toll operator would have been beside his car, could have seen his DTES disc and raised the barrier manually without any need for the Complainant to explain to the control room, in the hearing of his passenger, that he was a driver with a disability.

I find as a matter of fact that the automated system mis read the Complainant’s registration number. I find the evidence of Ms. McMullen that she immediately noticed that the 1 or 2 before the D on his number plate was missing, when she saw the screen was credible. I find her explanation that she quickly looked up the online Motor Tax register inserting both a 1 and a 2 to see what came up was credible and that when she did that she could see that the Complainant was a DTES disc holder. I accept that the process took 1.47 minutes to complete and that she then lifted the barrier.

I accept that the Complainant did not know all this at the time of the incident and believed instead that he was being discriminated against. However had he read the DTES guidelines he would have learned that using a manned toll lane was for his benefit, not to his detriment.

Unsubstantiated beliefs or assertions that discrimination has occurred are not sufficient to establish a prima facie case. In Melbury Developments Ltd v. Valpeters EDA [2010] ELR 64 the Labour Court stated as follows:

“This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The complaints that the Complainant was discriminated by (a) the operation of the Respondent’s automated system and or (a) how the Respondent staff dealt with him, are not proven.

Conclusion

I am satisfied that the Complainant has not discharged a prima facie proof that he was treated adversely because of his disability. I am satisfied that no prohibited conduct took place.

I find this complaint is not well founded.

No prohibited conduct took place. This complaint is not well founded.

ESA – Motorway toll booth -