Complainant

Respondent

Parties

Emma  O'Dwyer

Transdev Dublin Light Rail Limited Luas

Representatives

Aengus Ó Maoláin B.L. instructed by VP McMullin LLP

Loughlin Deegan Byrne Wallace Shields LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00072818-001

26/06/2025

The Complainant, Ms Emma O’Dwyer is the mother of a six-year-old child who suffers from autism. In order to assist with her child’s disability, she is the owner of an autism assistance dog.

She alleges that while using the services of the respondent in Dublin on March 28th,  2025 she was subject to direct discrimination and harassment under the Equal Status Act 2000 (as amended) on the grounds of “disability”.

She gave her evidence on affirmation.

The witness gave the background to her child’s condition and the role of the support dog.

On that date, she boarded the Luas at St Stephen’s Green accompanied by the support dog to familiarise the animal with public transport and to further develop her competence as an assistance dog for her child.

The dog wore a bright, high-vis jacket, with “DO NOT DISTRACT” written across her back. The jacket also displayed the logos for My Canine Companion, the registered charity responsible for her training. She displayed a sample of the jacket at the hearing. CCTV footage from both the stop and the tram clearly demonstrate that this was at all times visible.

As the tram approached, the driver spotted that she had a dog and made dismissive gestures. When she boarded the tram, the door did not close.

The driver then announced over the intercom “The lady with the dog, as you well know, dogs are not allowed on the Luas, and you need to get off.”

In reply, the complainant stated that the dog was not a pet but a service dog, but she was unsure whether this could be heard.  The tram did not start and some moments later, the driver again announced over the intercom: “The lady with the dog, you need to get off the tram,” to which the complainant again repeated that it was a service dog.

He subsequently called security and publicly announced on the intercom that he was waiting for her to get off and said, “It’s ok, I have called security for the lady and the dog, and we will get going now.”

Following this exchange, the complainant was upset and was comforted by other passengers and used the Luas reporting service by texting “Luas” to 51444. In the event no security arrived. She said that she would have been glad of the opportunity to explain to them that she her dog had a right to travel.

When the Luas stopped at the Kilmacud stop, the complainant spoke directly with the driver prior to disembarking. He stated that it was not a service dog and that she required papers and a jacket for this to be the case.

The complainant drew his attention to the dog’s jacket and informed him that she would be reporting the matter further.  He  informed her that he did not care and repeated his view that it was not a service dog.

Following this exchange, a separate Luas driver, consoled the complainant at that stop and logged the incident on the Luas system.

This ended the complainant’s evidence.

An ES1 form was served on the Respondent on April 1st,  2025 for discrimination and harassment under the Equal Status Act 2000 (as amended) on the ground of disability.

The purpose of the dog is to assist the complainant and her son with decreasing stress levels, providing greater freedom to her child, and generally increasing confidence and self-esteem in those suffering from autism. The dog also acts as an ‘anchor’ for the complainant’s son, in order to alleviate ‘bolting’ behaviours when in public places. While working, the dog is at all times dressed in an official coat, medallion, and lead to distinguish it as a working dog and not as a pet.

As her son is six years old, all obligations in respect of the training, care, and handling of the dog are the responsibility of the complainant.  A highly trained working dog requires continuous and consistent training to maintain her competencies and skills. This includes increasing her familiarity and comfort with using public transport. Freedom to use public transport is essential but a constant difficulty for those suffering from autism.

It is a practical impossibility that this training will always involve the presence of the complainant’s son. This was the purpose of her presence on the Luas at the time of the incident.

The respondent’s accessibility policy is identified on their website. In respect of the use of assistance dogs, it states the following:

Luas welcomes assistance dogs on board. Assistance dog must wear the appropriate harness or jacket that would indicate to the driver that it is an assistance dog. The assistance dog is the responsibility of its owner and must be kept under control, whether it is in a harness, on a leash, or in a carrier. An assistance dog must not block the aisle or travel on a seat.

Adequate space is provided for guide dogs underneath designated seats on Luas.

As long as there is space, there is no limit to the number of assistance dogs the Luas driver can allow on a tram.”

The relevant provisions of the Equal Status Act 2000 were set out in the submission, including the definition of ‘discrimination’ in Section 3. It continued to say that “Harassment” is defined in section 11(5)(a) of the Act as follows and cited the relevant provision.

The prohibition against harassment is defined at section 11(1) of the Act as follows: -

“11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

(a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

…

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.”

Section 11(3) of the Act goes on to define a defence against harassment as follows: -

“(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.”

In respect of burden of proof, section 38A of the Equal Status Act 2000 (as amended), provides the following: -

"38A. - (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."

As outlined in by the Labour Court in Mitchell v Southern Health Board (Cork University Hospital) [2001] 12 ELR 201, in this respect a complainant: -

“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."

The Complainant submits that she was the subject of direct discrimination. A number of cases have established that refusal of a service dog may amount to discrimination within the meaning of the Act. In Kenneth Walsh v Bus Éireann ADJ-00048460, the refusal of a visual impairment dog by the Respondent, who cited a lack of space, was found to contravene section 4(1) of the Act on the basis of not providing reasonable accommodation. Similarly, in John Roche v. Alabaster Associates Limited t/a Madigans DEC-S2002-086, refusal on the basis of food safety was held to contravene the Act.

As outlined by the WRC in Maria Rosita Apaza Machaca v Scotco (RoI) Limited ADJ-00046352, discrimination of this nature is particularly unfortunate for disabled people as an assistance dog is itself a clear indication of requiring assistance. As was noted in that judgement,

“I find this treatment all the more worrying because an assistance dog is a signal, a tangible, physical indication that a person has a disability, and, in a certain way, it provides an opportunity not to discriminate.”

The Complainant does not herself have a disability. but the Respondent’s Accessibility Policy (recited at 4.1 above) does not require that a disabled person accompanies an assistance dog. The Policy simply permits assistance dogs provided that they are suitably identifiable.

Secondly, the Complainant submits that she was subject to discrimination by association. She is the mother of a disabled child, for whom she was carrying out training of their assistance dog. Under section 3(b) of the Act, where a person is associated with another person, and they are “treated, by virtue of that association, less favourably than a person who is not so associated”, then they have suffered discrimination if the less favourable treatment would otherwise constitute discrimination for that other person.

In Case C-303/06 Coleman v Attridge Law, the European Court of Justice found such an ‘association’ to apply for the Complainant’s disabled child, for whom the Complainant was providing care. While that case concerned Directive 2000/78, and was an employment dispute, it was noted that, where: -

“It is established that the less favourable treatment of that employee is based on the disability of his child, whose care is provided primarily by that employee, such treatment is contrary to the prohibition of direct discrimination laid down by Article 2(2)(a).”

In the present case, the complainant was using the Luas to familiarise the dog with the public transport system on behalf of her child. As detailed above, this training is essential in giving substance to the right of the Complainant’s child to access public life. At all times, the dog was visibly dressed as a working dog, wearing bright colours that distinguished it from a pet, in compliance with the relevant policy of the Respondent.

In spite of this, she was subject to public humiliation and had security called to remove her from the Respondent’s tram.  The relevant treatment was directed towards the Complainant in her use of an assistance dog on behalf of her child, who suffers from a recognised disability.

The Complainant therefore submits that she is ‘associated’ with her child within the meaning of section 3 of the Equal Status Act 2000 (as amended). As her treatment was less favourable by virtue of this association and would have constituted discrimination had it been directed at her child, she was therefore subject to discrimination by the Respondent.

Complaint of Harassment

The Complainant further submits that she was the victim of harassment by the Respondent.

As outlined above, section 11(5) of the 2000 Act (as amended) defines harassment as conduct which has the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

In Nail Zone Ltd v A Worker EDA1023, the meaning of “harassment” under the Employment Equality Acts 1998-2015, which mirrors section 11 of the Equal Status Act 2000, was outlined in the following terms: -

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”

As is evident from the CCTV footage from the incident, the complainant was visibly shaken and distressed from being public humiliated. The use of public services can be a distressing task for those who require disability assistance. Having security called to be removed from the premises for such assistance, in spite of compliance with the relevant guidance, is a clear afront to the Complainant’s dignity as the mother of a disabled child.

As outlined by the WRC in Kenneth Walsh v Bus Eireann ADJ – 00048460, the effect of such experience for affected people “doesn’t end in one day, but it permeates into the future, making the person anxious about going out and having an ordinary life.”

In the same judgement, it was noted that articles 19, 20, 29 and 30 of the UN Convention on the Rights of Persons with Disabilities, to which Ireland is a signatory, requires inclusive access to public service providers. As defined in Article 1 of that Convention, the purpose of these protections is, inter alia, “to promote respect for their inherent dignity.” The Complainant submits that this is likewise the aim of the disability ground under the Equal Status Act 2000 (as amended), namely, to protect the dignity of those living with disability.

As the Respondent’s conduct violated the Complainant’s dignity and created an “intimidating, hostile, degrading, humiliating or offensive environment” for her, it therefore constituted harassment within the meaning of section 11 of the Act.

The use of assistance dogs in public is an essential support for many individuals living with autism. Where young children are involved, the right of their parents and carers to access public transport in order to train those animals is required in order to give substance to that support.

The complainant was treated less favourably on the basis of her child’s assistance dog, that the respondent’s actions amount to discrimination within the meaning of section 3 of the Equal Status Act 2000 (as amended). She further submits that, as this conduct undermined her dignity, and created a hostile and humiliating public environment for her, that it constituted harassment within the meaning of section 11 of the Equal Status Act 2000 (as amended).

Transdev is committed to promoting the accessibility of the Luas service to people with disabilities and has published on its website an Accessibility Policy. This policy recognises that transport is essential to enable people with disabilities to participate in normal activities of daily life, such as work, education, leisure and social activities.

The Accessibility Policy acknowledges that some passengers have disabilities, which are sometimes not visible and that there can also be a wide range of differences between how individuals with a particular condition are affected, ranging from mild to severe difficulties. The Accessibility Policy confirms that a person’s environment, which includes the supports they have and the physical or social barriers they face, influences the scale of the challenges they face in everyday life, therefore some passengers require our extra care and attention. It sets out a range of commitments, including the following. The Accessibility Policy provides as follows.

“Compliant with current accessibility and environmental standards for transport systems, Luas’ aims are to:

• Provideyouwithasafeandcomfortabletramjourney.
• Consult with people with a special need, in an effort to meet their requirements and expectations as best we can.
• Make our Luas services as accessible as practically possible.
• Work with other outside agencies such as Transport Infrastructure Ireland (TII) and the National Transport Authority (NTA) to ensure that Luas platforms and trams are fully accessible.
• Review our services on a regular basis to see how best it can be improved.
• Provide disability awareness training as part of our passengercare training for all Luas staff.

Upgrade our communication system and provide accessible information where required.

…

We encourage our staff to be flexible and professional in their approach to passenger concerns and needs, and make every effort to make our service as accessible as possible.”

The Accessibility Policy sets out a range of support for people who require particular types of support. In respect of passers who require assistance dogs, it provides as follows.

“Passengers with Assistance Dogs

Luas welcomes assistance dogs on board. Assistance dog must wear the appropriate harnessorjacketthatwouldindicatetothedriverthatitisanassistancedog.The assistance dog is the responsibility of its owner and must be kept under control, whether it is in a harness, on a leash, or in a carrier. An assistance dog must not block the aisle or travel on a seat. Adequate space is provided for guide dogs underneath designated seats on Luas.

As long as there is space, there is no limit to the number of assistance dogs the Luas driver can allow on a tram.”

The complaint arises because the Luas driver made a mistake. He did not realise that the dog was an assistance dog. On 28 March 2025 Ms O’Dwyer was travelling with the dog. the dog is an assistance dog – though the dog is not Ms O’Dwyer’s assistance dog, the dog is her Ms O’Dwyer’s son’s assistance dog.

The complainant and the dog boarded a Luas tram at the St Stephens Green Luas Stop. The driver saw her as he approached the platform, he then saw her boarding the tram. He did not notice that the dog was an assistance dog or see its high-vis vest.

He acted as he would act towards a passenger who brought a dog (other than an assistance dog) on board a tram – namely by asking the complainant  over the Luas intercom to take the dog from the Luas. Ms O’Dwyer did not do so. Mr Healy indicated that he had called security. No security employees were available at the time to respond.

Ms O’Dwyer was not prevented from travelling on the Luas. She undertook her journey. Ms O’Dwyer disembarked at Kilmacud and approached Mr Healy at that stop. At the end of her journey she approached Mr Healy. It was only then that Mr Healy saw that the dog was an assistance dog.

Ms O’Dwyer served an ES1 form on April 1st 2025.Transdev’s Mr Dominic Bonner, Team Leader/Incident Manager, investigated the matter, including by asking the driver to complete an incident report in respect of his incident, watching CCTV of the incident with him and speaking with him.

Mr Bonnar gave evidence on affirmation.

The witness said that he had formerly been a Luas driver, and more recently a Driver Trainer and now a Team Leadre responsible for drivers.

He said that the on board monitors give drivers an external view only . On approach to the platform they switch to a rear and front view of the platform itself. He thought that to would be very difficult  for a driver to see a person some  way down the tram, which is fifty five metres long by means of the internal mirrors .

He stated that he was asked to interview the driver who  told him who was located by means of checking the entire duty roster for the day in question and was eventually identified. His report of the interview was submitted.

He was requested by management to get a statement. He showed the driver the CCTV footage and the driver told him that he had not seen the dog wearing a high-vis vest when Ms O’Dwyer and the dog boarded the tram.

He presumed the dog was a domestic pet. He also reported that if the relevant documentation evidencing the fact that it was an assistance dog had been provided to him he said.

“I would have apologised and moved on. But at no point was it evident that the dog was an assistance dog.”

Mr Bonner concluded the investigation meeting by confirming that the driver in question was now that the dog had been an support dog and was aware of how best to deal with a similar situation in the future.

Mr Bonner said he advised him that in future he should consider making a generic announcement regarding the restrictions of domestic animals on tram and also, if necessary to establish whether the dog is clearly an assistance dog or domestic animal.

In cross examination he accepted that the driver could have made a generic announcement.

REGULATORY PROVISIONS REGARDING DOGS TRAVELLING ON LUAS TRAMS

The Light Railway (Regulation of Travel and Use) Bye-laws 20155 which specifically relate to the Luas sets out restricted behaviour at Clause 6. It states:

“6. (1) A person shall not on a light rail vehicle or a light railway without permission given by or on behalf of an operator –…

(h) be in possession of any animal (other than a guide dog or a Peata therapy dog)

…”.Transport for Ireland provides information on accessible travel and issues specific information regarding Animals on TFI Services6. It states:

“Guide dogs and Assistance dogs are permitted on all TFI services. The Guide or Assistance dog must wear an official coat, medallion and lead to distinguish it is a working dog, that it has the relevant training, and not a pet. A parent or guardian who is accompanying a child with an assistance dog should be carrying an identity card for the dog.”

It also states in respect of dogs and other animals specifically on the Tram:

       “Animals are allowed on Luas services provided they are in an appropriate enclosed pet carrier case / box.”

APPLICATION OF THE LAW TO THE FACTS

Ms O’Dwyer in her complaint form does not indicate that she has any disability. Her lack of a disability renders her complaint misconceived.

She relies on the fact that her son’s dog the dog is an autism assistance dog. the dog belongs to her son who was not with her on the day of the incident. The fact that the dog is an autism assistance dog is not sufficient to ground a complaint of direct discrimination by Ms O’Dwyer.

Ms O’Dwyer was not treated any “less favourably than another person is, has been or would be treated in a comparable situation” on the grounds of any disability. The comparable situation is one in which a Luas driver believes (whether mistakenly or otherwise) that a dog that a passenger has brought on to a Luas tram is not an assistance dog. In any such situation, the passenger will be asked to remove the dog from the Luas tram and security may be called if the passenger does not do so.

Ms O’Dwyer was not denied service in this case. She completed her journey on the Luas.

No direct discrimination arises in this case.

Complaint of indirect discrimination in the provision of goods/service on grounds of disability

The definition of indirect discrimination for the purposes of the Act of 2002 (set out in section 3(1)(c) and reproduced above) requires the existence of an “apparently neutral provision” that “would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons.”

In this case there is no such provision that puts a person with a disability at a particular disadvantage. Transdev’s Accessibility Policy expressly permits the attendance of assistance dogs on Luas tams, such that people with a disability who require the assistance of such dogs are not put at any particular disadvantage.

The more general requirement that dogs (other than assistance dogs) are not permitted to travel on Luas trams is objectively justified, having regard to the need to comply with the regulatory framework regarding dogs on Luas trams set out above; to protect the safety of passengers and for reasons of hygiene.

In this case Mr Healy was not aware that the dog was an assistance dog at the time the incident occurred and (based on that misunderstanding) acted in accordance with the regulatory framework appliable to dogs on Luas trams. Mr Healy’s misunderstanding is explicable because Ms O’Dwyer has not shown him any identity card to confirm that the dog was an assistance dog. Ms O’Dwyer did not make it known to Mr Healy that the dog was an assistance dog until she had reached her destination at Kilmacud.

No indirect discrimination arises in this case.

Complaint of harassment

Ms O’Dwyer was not subject of harassment by the driver. Firstly his conduct, while unwanted by Ms O’Dwyer, was not “relatedtoany of the discriminatory grounds”.He asked her to take the dog from the tram because he did not know it was an assistance dog. He called security because she did not do so.

Secondly, in asking Ms O’Dwyer to take the dog from the tram Mr Healy’s action did not have purpose or effect of violating Ms O’Dwyer’s dignity.

The case of Ruffley v Board of Management of St Annes School [2017]IESC33 did not concern allegation of harassment under the Act of 2000; that case related to alleged bullying at work.

However, the definition of bullying at work that is used in Codeof Practice Detailing Procedures for Addressing Bullying in the Work Place (Declaration) Order2002(S.I. No. 17/2002) that was in issue in Ruffley has a common component to the definition of harassment in the Act of 2000,namelytheconceptofdignity.

The Code of Practice of 2002 relates to the dignity at work, whereas harassment under the Act of 2000 relates to dignity of people receiving goods and services. In both cases, the essential element (in order for breach of the respective rights to be established) is that the actions complained of must meet a sufficiently serious threshold, such that the actions can be said to have undermined a person’s right to dignity.

In his decision, O’Donnell J (as he then was) set out the high bar that is to be met in order to ground a finding of bullying, having regard to “dignity” component of the definition of bullying.

“In my view for the reasons already set out, it seems to me that the requirement of conduct undermining dignity at work is a separate, distinct and important component of the definition of bullying which identifies the interests sought to be protected by the law, and just as importantly limits the claims which may be made to those which can be described as outrageous, unacceptable, and exceeding all bounds tolerated by decent society.”

A similarly high bar must apply in the case of a finding of harassment under the Act of 2000, given the centrality of the concert of dignity in the definition of harassment.

Also in RuffleyCharleton J made clear that not every wrong give rise to a basis for litigation.

“Not every wrong, evenone which results from unfair or unfortunate circumstances, gives rise to a cause of action.”

In the alternative, and without prejudice to the preceding points, in the event that you determine that the driver’s conduct amounted to harassment within the meaning of the Act of 2000 Transdev is entitled to avail of the defence in section 11(3). Transdev has an Accessibility Policy that expressly permits the presence of assistance dogs on trams. If Mr Healy had been aware that the dog was an assistance dog he would not have raised any issue about her travelling on the tram.

The Respondent accepts, and is very sorry for the fact, that Ms O’Dwyer experienced embarrassment and upset at the incident which occurred. It is very unfortunate that she did not make it clear to Mr Healy when she boarded the tram that the dog was an assistance dog. Had she done so this incident would have been avoided. Mr Healy for his part has committed to be more sensitive in the announcements that he makes in similar circumstances in the future.

Conclusion

The respondent submits that the three separate elements of the complaints must be considered on their distinct merits.

They are that the complainant had no disability, she suffered no detriment, and finally the absence of a disability renders the harassment complaint invalid.

Ms O’Dwyer’s complaint is misconceived. The complaint alleges discrimination on grounds of disability (and related matters), but Ms O’Dwyer does not assert that she has any disability. Ms O’Dwyer’s experience does not meet the threshold required to establish a claim under the Act of 2000.

The facts are as set out in the evidence and submissions above and are largely uncontested in respect of the key elements of the narrative.

The complainant was waiting for the Luas at the St Stephen’s Green stop and was accompanied by the support dog which she was training for her young son’s use.

The driver noticed her on his approach but, apparently unaware of the dog’s status, beckoned to her to the effect that she should not board the tram with the animal.   When she did board, he made a series of announcements intended to get her to alight, but she did not do so.

She says that she stated that the dog was an assistance dog, but even in her own account she can not say that the driver heard her. Indeed, anyone familiar with the Luas will know that it would have been impossible for him to hear her, as she stated that she was probably three units from where the driver sat in his sealed cab, at least thirty metres away.

It is a surprising feature of the narrative that she made no attempt to approach the driver’s cab to make her point about the status of the dog, although she did so on alighting.  She would have had several opportunities to do so safely as there are frequent stops on that route.

Based on both her evidence and Mr Bonnar’s evidence of  his investigation the driver was still, initially at least, insistent at the point of the complainant’s journey’s end in Kilmacud that the dog was not a support dog.

To those unfamiliar with the nature of support dogs, and the breeds which make them up (which probably should not include Luas drivers, but does include this writer) the case that the animal might be mistaken from a distance for a household pet rather than a support dog is plausible, notwithstanding its jacket, based on the very limited CCTV evidence shown at the hearing.

The complainant‘s further assertion that  the CCTV footage showed that the dog’s identifying jacket was ‘at all times visible’ is also not borne out by the CCTV footage shown to the hearing, although the hearing was at the disadvantage of not having the driver’s direct evidence on this point. The issue le less whether it was visible than whether the driver actually saw it and understood what it was.

But in making out her case the complainant has to overcome a number of serious obstacles, which are set out in the summary of the respondent‘s case above.

The first of these is that the complainant herself does not suffer from a disability. She has argued that she may be covered by the ‘discrimination by association’ provision.

In my view this is highly doubtful, but it is not necessary to rehearse the legal argument on that point in respect of the direct discrimination complaint because of the second obstacle.

While it is clear that the complainant endured a most upsetting and embarrassing  experience, she  could not identify any detriment or act of less favourable treatment which flowed from her alleged association with the protected ground of disability. The act of less favourable treatment was rather weakly attributed to her experience of the entirety of the journey, but this is again to seek to elevate the complainant’s feelings to a point where they can be crystallised into a breach of the Act.

And again I note that the complainant failed to take even elementary steps to advise the driver of the true nature of the accompanying animal which would surely have avoided this. She relied entirely on her expectation that the driver had divined that the animal was what it  was.

The evidence before the hearing was that he did not. Her own evidence was that even when the complainant dismounted at Kilmacud and approached the driver he was still disputing that the dog was a support dog.

This brings us to the complaint of harassment  and in this respect, it is necessary to look again at the complainant’s status.

None of the case law relied on by the complainant is relevant to the facts of this case. Her representative argued on a somewhat fanciful reading of the respondent‘s policy that a person travelling did not need to have a disability and that the policy permits a support dog to travel whether or not they are actually accompanying a person with a disability.

This is a somewhat absurd argument. There is also a particular inconsistency in making this argument as separately an authority was submitted that discrimination of this nature is particularly unfortunate for disabled people as an assistance dog is itself a clear indication of requiring assistance in the WRC Decision in Maria Rosita Apaza Machaca v Scotco (RoI) Limited ADJ-00046352.)

The respondent can hardly make an argument that an assistance dog is ‘itself a clear indication of requiring assistance’ and also that it may be travelling with a person who does not have a disability!

While I have noted that it is only relevant if the complainant can establish a prima facie case, the complainant sought to forge a connection between the facts in Case C-303/06 Coleman v Attridge Law, in which the litigant argued that she was brought within the jurisdiction of the Act because she had a disabled child. In that case the complainant alleged that in her selection for redundancy her obligations in respect of minding her son with a disability had resulted in less favourable treatment than for co-workers who were not so affected.

So there was a close and direct degree of proximity between the disability and the complainant and the alleged breach. Indeed it might be said that the simple concept of ‘association’ did not adequately describe Ms Coleman’s connection to the person with the disability. She was his immediate carer and had to take time off work to attend to him and suffered the discrimination as a direct consequence.

So while it is not in doubt that discrimination (or harassment) is not confined to the person with the disability (or other protected ground) and that it is possible to breach the Act on the basis of an association, some of the earlier obstacles re-surface.

The first of these is to identify what the act of harassment was. This primarily related to the announcements made by the driver at St Stephen’s Green.

The complainant’s representative also spoke vaguely of the impact of the journey on the complainant as some sort of continuum of treatment.

This falls some way short of the requirements in Mitchell v Southern Health Board (Cork University Hospital) [2001] 12 ELR 201, on which it has relied above, that a complainant

“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."

In respect of the former it is clear that the driver acted in good faith and in respect of the second there are no primary facts which raise a presumption of discrimination or harassment.

Before concluding, it is quite clear from both sets of submissions that this was a most unfortunate episode, both in terms of what the complainant endured but equally that the respondent regretted the events giving rise to the complaints.  The respondent’s legal representative at the hearing apologised to the complainant on more than one occasion for her experience.

It is also clear from Mr Bonnar’s evidence that some operational lessons were learned for the future, for which the complainant deserves some credit for making this complaint, and this may provide her with some measure of consolation for her experience.

It is an odd anomaly that complaints under the Equal Status Acts were placed within the jurisdiction of the Workplace Relations Commission on its formation in 2015 and how exactly that anomaly arose will be a matter for students of legal history.

However, it has one rather unfortunate, possibly unintended consequence.

It has placed complaints that arise under the Equal Status Acts, which is not an employment statute and in respect of which different systems of informal dispute resolution have applied,  outside the scope of the Mediation Act 2017.

Section 3 of that Act states that it shall not apply to.

 (b) a dispute that falls under the functions of, or is being investigated by, the Workplace Relations Commission, including a dispute being dealt with under Part 4 of the Workplace Relations Act 2015 whether by a mediation officer appointed under section 38 of that Act or otherwise.

While there may be good historical reasons for placing employment related disputes outside the scope of the Mediation Act (although an argument could be made either way) the exemption referred to has the effect of removing the obligation falling on solicitors at section 14 of the Mediation Act to advise clients of the option of mediation.

I have no knowledge of whether the parties in this case sought to engage in mediation and the point being made here is a general one. However, the facts referred to above, and the disposition of the respondent in the course of the hearing would have provided encouraging grounds to believe that an amicable outcome was a possibility here.

But even without the specific application of the provisions of the Mediation Act, public policy in that regard is clear and it is surely best practise to pursue that route as an alternative even to the less rigorous proceedings of the WRC.

Indeed public policy may be said to have stiffened following the recent landmark High Court judgement in J. Burke & Associates v O’Connell [2026] IEHC 324 which addresses the issue of the powers of the courts  to direct parties to attend mediation (although not of course to settle).

This case makes it very clear that the concept of consent in relation to mediation is not synonymous with a party having a veto (and this is all too common in workplace disputes) and it should encourage parties in general to seek amicable resolution where possible, even where the Mediation Act does not require them to do so.

Returning to the complaints I find as follows.

The complaint has not made out a prima facie case of either direct or indirect discrimination (indeed no case at all was made on the latter). Likewise for the reasons set out above the complaint of harassment is not upheld.

For the reasons set out above Complaint CA-72818-001 is not upheld.

Equal Status. Disability