Complainant

Respondent

Parties

Kathleen  Reynolds

Bus Eireann

Representatives

 Complainants Daughter

 Snr Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067122-001

01/11/2024

The Complainant alleged that she was denied entry to a Bus and told to take a different bus. The Complainant alleged she was discriminated against because of her age..

The Complainant is an 83-year-old woman. She alleged that on June 6th, 2024, at Ennis Bus Station, bus driver Derek Lane denied her access to the 2:00 PM No. 333 bus from Ennis to Kilkee without any valid reason. She alleged he falsely claimed that the bus was only going to Doonbeg and instructed her to wait for the 3:00 PM bus instead. The Complainant was in a lot of pain and it was a particularly cold day. The Complainant knew the 2pm bus took a longer route home to Kilkee but she wanted to be seated on a warm bus rather than wait at Ennis bus station which is very cold. She stated this was her choice to make and she alleged the Bus Driver refused her access to the bus without cause or reason. The No. 333 bus continued to Kilkee, as it does, and she was discriminated against by Derek Lane.

Bus Éireann operates a range of services around Ireland, including PSO (Public Service Obligation) services operated under contract to the National Transport Authority, commercial intercity services operated under the ‘Expressway’ brand and school bus services on behalf of the Department of Education. In 2023 (figures for 2024 have not yet been released), the company had 107 million customer journeys, almost 20% higher than the previous year. Customers come from all walks of life and include young, old, male, female, national and international and we do not discriminate against any customers.

The Company operates in a highly competitive service industry and lists ‘Customer First’ as a core value. In all customer engagement – in person, by ‘phone or electronically - the company continually seeks to demonstrate its commitment to maintaining an environment where everyone is treated equally and where differences are welcomed and embraced.

Further measures have been implemented in more recent years as the company has sought to provide universal and inclusive accessibility on all services. These include improvements in accessibility infrastructure resulting in enhanced customer facilities on our vehicles and in bus stations across the country. Significant investment in low-floor accessible vehicles has resulted in seismic improvements for those who rely on best in-class accessibility to use public transport, including a 100% success rate for assisted wheelchair journeys.

In addition, the company established a team of Travel Assistance agents which helps customers to plan and undertake their journeys with confidence. This team of specially trained assistants support inclusive travel, helping people with disabilities, the elderly and others who need assistance to use public transport.

Complaint (investigation & correspondence)

The Complainant  first contacted the customer care department in Bus Éireann in June 2024 where she outlined her experience while seeking to travel on the 1400 Bus Éireann route 333 (Ennis – Kilkee) on the 06th June 2024. The customer timetable for this route was supplied.. This service was operated by Bus Éireann driver Mr Derek Lane. Mr Lane has worked for Bus Éireann for over 25 years and operated routes around Ennis during that time in which he has had an extremely positive relationship with all customers.

Local management met Mr Lane to discuss this incident during which he advised that he did not recall any specific interaction with the Complainant on the day. Mr Lane advised management that he would regularly inform passengers boarding the 1400 hours service to Kilkee that there is a more direct service departing Ennis one hour later, at 1500, should they wish to travel on it instead. He offers this advice solely because the journey time of the 1500 hours service is considerably shorter. The 1500 hours service arrives into Kilkee at 1605, which is exactly the same time as the 1400 hours service, which takes a more circuitous route.

During the meeting, Mr Lane advised that he has provided similar advice to customers on many occasions in the past, but the choice of travel option has always rested with the customer. During the meeting Mr Lane was adamant that he has never refused the Complainant access to the 1400 hours service. While Mr Lane does not recall any interaction with the Complainant, he did say that if (and only if) he spoke to the Complainant, it would have been to inform her of a more customer friendly direct travel option at 15.00.  He said that people opt for the 1500 service which means they can remain in Ennis station and have access to toilets and smoking facilities while they wait which are not available on the 1400 service.

Mr Lane categorically denies that he refused the Complainant access to his service and says he may simply have sought to inform her of travel options but genuinely does not recollect any conversation with the Complainant that day.

From the internal investigation it is evident that no discrimination has occurred and the actions of Mr Lane on the day were designed to convenience the Complainant on her journey to Kilkee. The Respondent denied any breach of the legislation nor did they accept a prima facie case of discrimination is made.  The Company requested that the Adjudication Officer uphold its position and dismiss this claim.

The company would also like to make it abundantly clear that Ms Reynolds is welcome on board our services at any time and if she requires any support from the travel assistance team we would be happy to arrange that. The company would also like to apologise to Ms Reynolds for any misunderstanding which arose that day as our driver sought to support her journey to Kilkee.

The date of the alleged discrimination is June 6th 2024. The complaint was submitted to the WRC on November 1st 2024. The complaint identified Bus Eireann as the Respondent against whom the claim was against. It identified Mr. Lane as an employee of Bus Eireann who was involved in the incident.

The Complainant submitted an ES1 form on September 25th 2024. The form was addressed to Mr. Derek Lane at the NTA address in Dublin. This was submitted outside the 2 months required by law. The Complainant was notified on November 4th 2024 that the form was submitted outside the 2 month time frame.

No substantial issue was made of the ES! Form not being made out directly by the Respondent against Bus Eireann at the Hearing and Bus Eireann were at no disadvantage as a result of this situation and presented as the Respondent at both Hearings

Section 21 (2) of the Act states “Before seeking redress under this section the Complainant shall, within two months after the prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the Respondent in writing of

-          The nature of the allegation

-          The Complainants intention, if not satisfied with the respondents response to the allegation, to seek redress by referring the case to the Director”.  “

Section 21.4 allows for the extension of the 2 months time limit to notify the Respondent to 4 months in “exceptional circumstances”.

In this particular case the Complainant notified the Respondent outside the 2 month time limit. The Complainant advised that she did not have access to a computer or have internet access as her grounds for the granting of exceptional circumstances.

The issue of exceptional circumstances was considered by the Labour Court in the case of Gaelscoil Thulach Na Nog  and Joyce Fitzgibbons-Markey (EET034) and outlined them as follows;

“The Court must first consider if the circumstances relied upon by the Applicant can be regarded as exceptional. If the answers to that question is in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her complainant on time. The term exceptional is an ordinary familiar English adjective and not a term of Art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon to be exceptional a circumstance that need not be unique or unprecedented or very rare, but I cannot be one which is regular or routinely or normally encountered”.

Having considered all of the facts of this case I find that a person not having access to a computer or the internet is exceptional and I grant the Complainant an extension of time under Section 21.4 of the Act.

The Complainant and the Bus Driver both gave evidence under affirmation. The Complainant advised her husband had worked for CIE for most of his life and that she was definitely not allowed board the 2pm bus by Mr. Lane on June 6th 2024. Mr. Lane  stated he had no recollection whatsoever of meeting the Complainant on the day in question and he had worked for Bus Eireann for 35 years and lived in Kilkee and was well regarded by the community. He advised he would often offer the advice that there was a more direct bus to customers who were travelling to Kilkee and he felt this was beneficial to them. He advised he would never refuse access to a Bus, except for unruly behaviour, had no knowledge of the Complainant and when asked by the Adjudicator, he confirmed he never had a complaint of discrimination made against him during all his service. The Complainant was asked did she board the Bus and she advised she did not. The Bus Driver offered a possible explanation that his seat would be about 8 feet from where a passenger would be standing and that there was a screen in the middle which may make a conversation difficult and lead to a misunderstanding.

The Labour Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held: 

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

Both the Complainant and the Bus Driver gave very clear but totally conflicting evidence regarding the alleged discrimination. Having considered the evidence of both parties I conclude that the Complainant has not established, on the balance of probabilities, a prima facie case that she was discriminated against.  The Complainant came across as a decent and honest person but equally the evidence of the Mr. Lane cannot be discounted as to his version of how events may have happened, given he has no recollection whatsoever of the alleged incident.

I find that the Complainant was not discriminated against and the complaint is not well founded.

Burden of proof