William Hennessy v Dublin Bus (represented by Mr. Colm Costello, Solicitor)
This complaint was referred to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated these complaints to me, Dolores Kavanagh, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000.
1. Dispute
1.1 This dispute concerns a complaint by William Hennessy that he was discriminated against and/or harassed by the respondent on the gender, family status, age, disability and victimisation grounds in terms of sections 3(1) and 3(2)(a)(c)(f)(g) and (j) of the Equal Status Act 2000 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Act.
2. Summary of the Complainant's Case
2.1 The complainant states that the respondent prevented his access to and use of a bus on the evening of 28 April, 2001. The complainant claims that he was treated less favourably by the respondent because of his gender, age, family status and disability.
3. Summary of Respondent's Case
3.1 The respondent states that the bus in question was operating as a standard bus on the day in question because the wheelchair ramp was faulty. The bus driver had left the bus to manually operate the ramp at the complainant's insistence. When the ramp was eventually lowered, with great difficulty, the complainant refused to board the bus.
4 Evidence Provided by the Parties
4.1 Complainants' Evidence
Mr. William Hennessy, complainant
Mr. Hennessy stated that;-
- The driver of the bus in question had prevented his access to and safe transportation on, the number 10 bus on the evening of 28 April, 2001.
- On 28 April, 2001 Mr. Hennessy had waited at the bus stop in Baggot Street. It was a bright evening and the bus stop was clear of other vehicles. As the bus approached he signalled for it to stop.
- The bus came to a stop at a sharp angle to, and several metres from, the pavement. Mr. Hennessy asked the driver to pull in to the pavement to allow him access to the bus.
- The bus driver shouted at Mr. Hennessy that he was in a hurry and that the wheelchair ramp was not operating. Mr. Hennessy told the driver of the requirements of the Equal Status Act 2000 and of his entitlement to travel on the bus in the same manner as other passengers.
- Mr. Hennessy remained calm and polite throughout and asked the driver to pull closer to the pavement and to lower the wheelchair ramp. The driver refused.
- A male passenger came forward and asked the bus driver to pull into the kerb. The bus driver did so but at an angle so as to prevent the ramp from operating properly as it was wedged against the footpath.
- The driver was gesticulating towards the other passengers and repeating that he was late. Mr. Hennessy found this embarrassing and humiliating.
- The driver extended the ramp onto the roadway, preventing access to it as the path was over six inches high. Mr. Hennessy could not physically get down from the path in his wheelchair and to attempt to do so posed the risk of his toppling from the wheelchair.
- The bus driver came to the door of the bus to harass the complainant and while doing so failed to make the bus safe with the result that the bus lurched forward and almost collided with a car some twelve-fifteen feet in front of the bus.
- The bus driver then shouted at the complainant's personal assistant to get off the bus and began to move away from the bus stop. He then slammed the bus doors closed on her causing her to stumble and nearly fall off the bus.
- Following the above events the complainant and his assistant decided not to travel with the bus driver whom they regarded as a harasser. Mr. Hennessy also felt that it would be difficult to get off the bus at his stop if he had boarded the bus.
- Mr. Hennessy has wide experience of using ramps on Dublin Bus and in his experience they are fairly easy to operate with the use of two or three push buttons. One of these buttons is an emergency button and it was clear that the driver did not know how to use this. Mr. Hennessy has come across several bus drivers who do not know how to operate the ramps properly. He usually explains to them how to operate the ramp and this usually works.
- In Mr. Hennessy's opinion the cost of providing wheelchair accessible buses is quite high and this is wasted when they are not operated properly.
- Mr. Hennessy submitted 5 photographs taken of the bus stop area which he stated were taken shortly after the incident in question, on the same evening. These photos were submitted to show that the bus stop area was clear of other vehicles at the time in question. The photos were taken by a third party who was not present at the Hearing of this complaint. Four of the photos in question were taken from a height, overlooking the bus stop area. The four photos are also clearly taken at night time as it is dark in the pictures and passing cars have headlights on. Mr. Hennessy stated that these were taken by arrangement with a person working in a building adjacent to the bus stop area in the photos.
- Mr. Hennessy submitted a copy of the written report which he had submitted to the Gardai in relation to this incident.
Ms. M. Proseckina, Witness
Ms. Proseckina stated that:-
- She is an Armenian national and is employed as Mr. Hennessy's personal assistant.
- It was a very bright evening on 28 April 2001 when she and Mr. Hennessy arrived at the bus stop in Baggot Street.
- They waited for some time for a bus to arrive. When a bus arrived Mr. Hennessy signalled for it to stop. The bus stopped some 3-4 metres out in the roadway from the stop. A number of passengers rushed on and off the bus.
- Ms. Proseckina was the last person to board the bus. She asked the driver to pull over to the pavement to allow Mr. Hennessy to board the bus. The driver had responded that he was late and that he would let the ramp down where he was.
- Ms. Proseckina pointed out that to the driver that this was not acceptable as Mr. Hennessy would be unable to access the ramp from where he was. She again asked him to pull in to the kerb.
- The driver told Mr. Hennessy that he was running late and that he should wait for the next bus which was due shortly.
- The driver then drove the bus to the kerb at an angle. Because of the angle the ramp became wedged against the pavement and would not operate.
- The driver drove away from the kerb and again operated the ramp which worked this time. Ms. Proseckina pointed out that Mr. Hennessy could not get to the ramp out on the road.
- The driver again drove the bus in to the kerb at an angle. He then proceeded to try to operate the ramp manually and forced it to open. The driver asked Ms. Proseckina to go to the driver's cab of the bus and push a red button which would release the ramp. Mr. Hennessy shouted at her not to do any such thing.
- The driver then went to the rear of the bus and said to the other passengers that he could not do anything more. The other passengers were becoming angry because of the delay.
- The driver returned to the front of the bus and began to push some buttons in the driver's cab. While he was doing this the bus began to move. Mr. Hennessy shouted a warning to the driver that the bus was moving.
- The bus driver signalled to a second bus to stop. Another two buses on the same route had pulled in behind the first bus.
- Mr. Hennessy shouted to Ms. Proseckina to get off the bus as he was shocked at what had happened. He told the driver that he was going to call the Gardai and report him.
- The second bus pulled up behind the first bus. The driver from the second bus came to the assistance of the first driver and they both tried to operate the ramp manually. Eventually they got the ramp down.
- Mr. Hennessy decided that the driver was an unsafe driver and declined to board the bus.
- A number of passengers had left the first bus and had taken the second bus.
- Ms. Proseckina saw a woman passenger leave her seat at the front of the bus and go forward to speak to the driver see what was happening.
- After the bus had gone Mr. Hennessy rang the Gardaí. They waited for the Gardai to arrive and Mr. Hennessy reported what had happened. Ten minutes after the first bus had left a third bus arrived and they boarded it without any problem.
- Ms. Proseckina felt that the actions of the bus driver were a result of his trying to suit himself because he was running late, not because he was trying to deliberately treat Mr. Hennessy in this manner or be deliberately difficult.
- On arriving home at circa 8.45p.m. on the evening in question Ms. Proseckina made contemporaneous notes of the incident (submitted in evidence).
- Ms. Proseckina, who is originally from Lithuania, did not feel that the driver had any difficulty understanding her when she was speaking to him. She felt that he could have dealt with the matter better and if he had done so the whole matter would have been dealt with more quickly.
- Other passengers on the bus were angry, but only because of the delay. They were not angry at Mr. Hennessy. Ms. Proseckina felt that the other passengers were incited by the driver.
4.2 Respondent's Evidence
Mr. Rifat Sonmez, Bus Driver.
Mr. Sonmez stated that:-
- He was the driver about whom Mr. Hennessy had complained. On the evening in question he stopped at the bus stop in Baggot Street. He did not have a clear view of the path as around seventeen passengers were boarding the bus. He had stopped away from the kerb as some vehicles were blocking the bus stop.
- A lady (Mr. Hennessy's personal assistant) spoke to him as he was about to pull away from the stop and told him that her friend was still at the stop. She had pointed to Mr. Hennessy. He had told her that the wheelchair ramp was not operating properly and that they would have to wait for the next bus which would be there in two-three minutes. He had difficulty understanding what the lady was saying as her accent was unusual.
- He pulled the bus in at an angle to the bus stop to demonstrate that the ramp was not operating. Mr. Hennessy began shouting at him and talking very quickly to him. Mr. Sonmez originally from Turkey, became upset as he could not understand what Mr. Hennessy was saying to him, but he felt that Mr. Hennessy's tone was angry.
- Mr. Sonmez had received training from Dublin Bus as to how to operate the wheelchair ramp. He had seventeen years experience working on buses and knew how to operate the ramp. On the day in question the ramp was not working. This had been reported by Mr. Sonmez that morning. He had been instructed to take another bus if one were available. No other bus was available.
- He had been instructed to drive the bus as an ordinary bus in the circumstances. One passenger, a wheelchair user, had been helped onto the bus during the day by Mr. Sonmez who had brought the bus level with the kerb at the bus stop and helped the person onto the bus, but the ramp was not used. Mr. Sonmez was unable to help the complainant onto the bus in the same manner because the complainant's wheelchair was a very large, heavy model.
- When Mr. Sonmez had tried to tell Mr. Hennessy that the ramp was not in use Mr. Hennessy had become extremely angry and abusive to Mr. Sonmez. A lady passenger had advised Mr. Sonmez to get some witnesses to give their name and contact details because of the threats by, and conduct of , Mr. Hennessy. The lady had contacted the garage after the incident because she was concerned about the way in which the driver was treated and had given her name and details. (copy Inspector's report submitted giving details of the call from the lady passenger). Several passengers had given Mr. Sonmez their contact details and reassured him that they would verify what had happened if required to do so. Mr. Sonmez had not retained the details as, after a lapse of time, he did not think that they would be needed.
- Mr. Sonmez had tried everything to get the ramp to operate but could not do so. He had manually forced it open with the assistance of a driver from a second bus which had pulled up behind him. It took the efforts of the two drivers, while also pushing the emergency button for the ramp, to get the ramp down.
- The other passengers on the bus were becoming angry because of the delay. Several passengers got off the bus and boarded the bus behind.
- Mr. Hennessy had remarked that an Irish driver would not have had the same difficulty operating the ramp.
- Mr. Sonmez stated that Mr. Hennessy had been loud and abusive and had used foul language when speaking to him. This upset Mr. Sonmez to the extent that he contacted the Inspector in the garage after he left the bus stop to tell him what had happened and how abusive Mr. Hennessy had been. The Inspector had told Mr. Sonmez to return to the garage when he completed the route because he was so upset.
- Mr. Sonmez had resigned from the bus driving job that same day because of the abuse he had received from Mr. Hennessy.
Mr. David Dillon, witness
Mr. Dillon stated that:-
- He was driving the bus which pulled in behind that driven by Mr. Sonmez on the evening in question.
- A number of passengers boarded his bus but refused to pay fares as they indicated that they were transferring from the bus in front and had already paid their fares.
- When Mr. Dillon asked them why they were transferring buses they told him that the bus driver was having trouble with a man at the stop.
- Mr. Dillon got off his bus and went to offer assistance to the other driver. When he saw that the driver of the first bus was trying to open the ramp he told the driver to use the "override" button and showed him where it was. They tried to use the override button but it didn't work. Both drivers then forced the ramp open manually.
- When the ramp was finally open the man in the wheelchair on the path was very unhelpful and refused to get on the bus.
- Mr. Dillon confirmed that there were cars parked in the bus stop area at the time and it was not possible for the bus to line up properly with the footpath. Mr. Dillon had been driving the particular route for two years at time and stated that it was not unusual to find cars parked at the bus stop area. Mr. Dillon had been unable to pull into the kerb and had no choice to allow passengers to board and disembark from the bus away from the kerb.
- Mr. Dillon stated that Mr. Hennessy was very agitated and was "ranting" and "raving" at Mr. Sonmez throughout.
Inspector Noel Herbert, witness
Mr. Herbert stated that:-
- He was the person who took the phone call from a lady passenger who had witnessed the entire sequence of events on the evening in question (name and details of caller provided). The lady had stated that she had witnessed an argument between the driver of the bus on which she was travelling and a man in a wheelchair at the bus stop in Baggot Street. She stated that she would have to take the side of the bus driver as he had tried to help the person in the wheelchair who seemed to think differently. The lady also stated that the man in the wheelchair had a friend with him and he, the friend, was taking photos throughout the time they were at the stop and that the incident appeared to be a "set up".
- Later in the evening Mr. Herbert also took a call from a gentleman who said that he wanted to report a bus driver who had left the drivers seat in the bus, at which time the bus began to roll forward. The man had stated that he reported the incident to the Gardaí. Mr. Herbert told the man that this was a very serious matter and that he should put his complaint in writing and forward it to the unit manager. The caller refused to give his name to Mr. Herbert.
- Mr. Herbert had reported both calls to the Unit Manager (copy reports to the unit manager re: calls received by Inspector Herbert on 28 April, 2001 submitted by respondent)
- Mr. Herbert explained that the procedure when a bus is found to be faulty by a driver is that the faults are notified to a mechanical supervisor on a standard form and a service manager would follow up on the report. At the time in question only a limited number of buses on the specific route in question were wheelchair accessible. The bus would be allowed on the road to carry passengers as an ordinary bus until such time as the defective ramp was repaired.
- Training in the operation of the ramps had been given to drivers at the time. At a later date training was given to drivers by a wheelchair user as to the general requirements of wheelchair users when using public transport.
5 Matters for Consideration
5.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3 (1)(a) and 3 (2)(i) of the Equal Status Act 2000 in terms of Section 5 (1) of that Act.
5.2 Section 3 (1)(a) provides that discrimination shall be taken to occur where: "On any of the grounds specified.......a person is treated less favourably than another person is, has been or would be treated".
5.3 Section 3 (2) provides that: "As between any two persons, the discriminatory grounds ... are ...
(a) that one is male and the other is female (the "gender ground"),
(c) that one has family status and the other does not or that one has a different family status from the other (the "family status ground")
(f) ...............that they are of different ages (the "age ground"),
(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"),
(j) that one
(i) has in good faith applied for any determination or redress provided for in Part II or III
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the "victimisation ground")
5.4 Section 5 (1) states that "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 ".
5.5 Section 11 (1) of the Equal Status Act states that "a person shall not sexually harass or harass .... 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, ....."
Section 11 (2) states that "a person who is responsible for the operation of any place ........ 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 suffe sexual harassment or harassment at that place".
Section 11 (5) of the Equal Status Act states that "harassment takes place where a person subjects another person ("the victim") to any unwelcome act , request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory ground and which could reasonably be regarded as offensive, humiliating or intimidating".
5.6 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant in relation to each of the grounds under which he has lodged his complaint. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Membership of a discriminatory ground (the gender, age, family status, disability and victimisation ground in this case)
(b) Evidence of specific treatment of the complainant by the respondent
(c) Evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by that ground, would have received in similar circumstances.
If and when those elements are established, the burden of proof shifts, meaning that the difference in treatment is assumed to be discriminatory on the relevant ground. In such cases the claimant does not need to prove that there is a link between the difference and the membership of the ground, instead the respondent has to prove that there is not. If they succeed in establishing prima facie evidence, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case
The Gender Ground
The complainant in this matter is male and this satisfies (a) at 5.6 above. He states that he was prevented access to a bus on the evening of 28 April 2001 and that this was based on his gender. It is clear from the evidence provided that difficulties arose in relation to the complainant's access to a bus on the evening in question. This satisfies (b) at 5.6 above. However, the complainant has provided no evidence to support his claim that his gender was a factor in the difficulties encountered or that a female intending passenger in the same or similar circumstances would not have encountered the same difficulties, i.e it was the absence of a ramp that prevented the complainant's access to the bus, not his gender. The complainant has not satisfied key element (c) at 5.6 above and has not therefore established a prima facie case of prohibited conduct by the respondent on the gender ground.
Age Ground.
The complainant in this matter is over eighteen years of age and this satisfies (a) at 5.6 above. He states that he was prevented access to a bus on the evening of 28 April 2001 and that this was based on his age. It is clear from the evidence provided that difficulties arose in relation to the complainant's access to a bus on the evening in question. This satisfies (b) at 5.6 above. However, the complainant has provided no evidence to support his claim that his age was a factor in the difficulties encountered or that any intending passenger of a different age to the complainant in the same or similar circumstances would not have encountered the same difficulties, i.e it was the absence of a ramp that prevented the complainant's access to the bus, not his age. The complainant has not satisfied key element (c) at 5.6 above and has not therefore established a prima facie case of prohibited conduct by the respondent on the age ground.
Family Status Ground
The complainant has provided no evidence to establish how he might come within the definition of family status under the Equal Status Act 2000. He has not therefore satisfied (a) at 5.6 above. The complainant has not, therefore, established a prima facie case of prohibited conduct by the respondent on the family status ground.
Victimisation Ground
The complainant has provided no evidence to establish how he comes within the terms of Section 3(2)(j) , subsections (i) to (v). The complainant has not therefore established that he is covered by the victimisation ground and has not therefore established a prima facie case of victimisation.
Disability Ground
The complainant is a wheelchair user. This satisfies (a) at 5.6 above. The complainant has given evidence that he could not board a bus on the evening inquestion due to the absence of an operational wheelchair ramp on the bus he wished to board. This satisfies (b) at 5.6 above. The complainant has provided evidence to show that non-wheelchair users were readily able to board the bus in question while he was not able to do so and that no effort was made to accommodate his gainingaccess to the bus. This satisfies (c) at 5.6 above. I am satisfied that an inference of discrimination by the respondent arises on the disability ground.
6.2 Disability Ground - Specific Statutory Considerations
Under Section 17 (1) of the Equal Status Act, 2000 the Minister may, with the agreement of the Minister for Public Enterprise, make regulations requiring that new road or rail passenger vehicles which-
(a) are purchased or leased by an operator of a passenger road service or passenger rail service, and
(b) are to be used for the purpose of either such service, shall be equipped so as to be readily accessible to and usable by persons with a disability.
No such regulations have been made to date.
Section 4 of the Equal Status Act provides
(1) that 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.
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.
There is, and was at the time in question, no statutory/legal requirement that buses be wheelchair accessible.
While Section 17 does not state that the non-provision of facilities on road passenger service vehicles does not constitute discrimination it is clear that the whole issue of road passenger services is regarded, in terms of the Act, as something that requires separate and specific recognition/treatment. The service provided by the respondent and other road passenger service providers is an extremely large undertaking and the making of regulations regarding the purchase of new vehicles for the provision of disabled accessible road passenger services is a function of the Minister which must be undertaken only with the agreement of the Minister for Public Enterprise. The reference in the Act is also specifically in relation to the purchase of new vehicles intended for road passenger service provision. The Act makes no reference to requirements in relation to such existing vehicles.
Section 4 of the Act requires all service providers to provide facilities for the disabled in order to allow that they can avail of the service provided without undue difficulty. However, Section 4 also allows that where the provision of such facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable.
In the matter at hand the respondent has stated that the provision of each wheelchair accessible bus is in the region of €150, 000. In order to determine how many such vehicles would be required on any given route the cost of extensive research would also have to be incurred by the respondent. Given that wheelchair users are minority users of public transport it would seem to be an unreasonable cost to impose on the respondent to undertake the research and analyses required and then to provide a large number of passenger transport vehicles at a cost of €150,000 per vehicle on each route. Even if this were to be done, there is nothing to guarantee that the appropriate vehicle would be the one to arrive at a bus stop when a disabled intending passenger arrives at the stop. The only effective solution would be to provide that the entire fleet of vehicles is accessible to persons with disabilities. This goes far beyond what could be regarded as reasonable accommodation involving nominal cost to the respondent.
6.3 Complainant's Case
The complainant stated that the wheelchair ramp on the bus in question was operational and that it was the refusal of the driver to correctly align the bus with the pavement that prevented the ramp being correctly deployed on the evening in question. This effectively prevented the complainant gaining access to the bus. Both the complainant and his witness both stated that the bus driver stated to them from the outset that the ramp was not working. They both chose to question this and state that the ramp was, at one point, opened up out into the roadway, some distance from the footpath, where the complainant could not gain access to it from the pavement.
Both the complainant and his witness state that the bus driver was unhelpful and
uncooperative and drove the bus in a dangerous manner, to the extent that, when the
ramp was eventually deployed for use by the complainant, they declined to board the bus, choosing instead to wait for another bus.
The complainant also states that the manner in which he was treated by the driver in the course of their interaction was such that it constituted harassment against the complainant and that the bus driver incited the other passengers against the complainant.
6.2 Respondent's Rebuttal
The respondent stated that the bus driver had reported the ramp as being faulty that morning and was instructed to drive the bus on the route as a standard bus, i.e. not wheelchair accessible. This allowed that the bus was available on the route for the majority of passengers. A standard report form would have been filled in at the time by the driver and passed to the appropriate personnel for follow up action. Only a very limited number of buses overall, not just on the bus route in question were, at that time, wheelchair accessible. The ramp's being inoperative was regarded therefore as a minor inconvenience in light of the large number of non-wheelchair users who would be using the bus in the course of the day.
The driver of the bus gave evidence that the complainant simply refused to accept that the ramp was inoperative. The driver could not pull into the bus stop area level with the pavement because of cars blocking his way. He had attempted to do so and had reversed the bus and tried unsuccessfully to move into the pavement to try to get the complainant onto the bus without the use of the ramp, even though the complainant's wheelchair was not ideal for such because of its size and weight which was well above that of a standard type wheelchair.
The driver had also done everything in his power to manually deploy the ramp which is unwieldy and awkward. He had attempted to use the override button to deploy the ramp but to no avail. The other passengers on the bus had become extremely impatient and angry and the driver had tried to point out to them that he was doing everything that he could to help the complainant. He had not at any time tried to incite them against the complainant, but was rather, responding to their angry remarks and the pressure they were bringing to bear on him about how late they were running. Despite all of this he had spent 20-25 minutes trying to get the ramp to work for the complainant who was shouting at him and being extremely unhelpful and insulting. While he was attempting to do all of this the complainant had a male companion with him who was taking photographs of the driver while the complainant was saying "smile, we're taking your picture".
The driver of the second bus which pulled into the stop, Mr. Dillon, stated that he left his own bus to help Mr. Sonmez and he also witnessed the behaviour of the complainant who was shouting at Mr. Sonmez in an angry way and being very unhelpful. Mr. Dillon and Mr. Sonmez had to manually force the ramp down onto the pavement at which time the complainant refused to board the bus, accusing Mr. Sonmez of being a harasser.
The respondent also submitted reports of a telephone call from a lady passenger on the bus in question who felt compelled to ring the Inspector and relate what she had witnessed because she felt that the driver had been treated badly by a man in a wheelchair (the complainant). She stated that the driver had attempted to assist the complainant but that the complainant insisted on thinking otherwise. The lady in question also stated that a male companion of the complainant had taken photos throughout the incident and that she felt that the entire incident had been a "set up" i.e staged deliberately.
6.3 Other Relevant Matters
In the course of submitting his complaint, dated 28 August, 2001, to the Director the complainant stated that he had not received any response from the respondent to the statutory notification issued by the complainant in accordance with the requirements of the Equal Status Act 2000. The respondent submitted a copy of the reply, dated 30 July which had issued to the complainant.
In relation to the photographs submitted in evidence by the complainant, no indication is given in/on the photographs as to the date on which they were taken. These photos show little except the bus stop and its immediate surrounding area. The photographs were submitted to show that the bus stop area was clear of traffic and that there were no cars blocking the bus drivers access to the pavement. Both the complainant and his witness repeatedly stated that, at the time they were at the bus stop, it was a bright sunny evening. The entire incident took place in about 15-20 minutes and they also waited a further 10 minutes for the Gardaí to arrive. Effectively they were at the stop circa 6.00 p.m. - 7.00p.m or thereabouts on a late April evening. However, only one of the photos submitted is taken in daylight. The other four photos are clearly taken at a much later time of day , or perhaps on a different day e.g. in the Autumn/Winter when it gets dark much earlier, as passing cars pictured in the photos have their headlights on full. It is clear from the photos that the car pictured immediately in front of the bus stop is different in two pictures, as one car is a hatch back and the other is not. Also the two cars in question are parked a matter of some two-three feet from where the complainant indicated that the bus was stopped. The bus could not therefore have rolled forward , as the complainant claimed, between 12-15 feet without colliding with either of the cars in the pictures.
Several of the photos in question are also taken from a height overlooking the bus stop, by arrangement according to the complainant, with a person in the office adjacent to the bus stop. Yet the complainant repeatedly stated in evidence that, after he had spoken with the Gardaí, he and his assistant caught the next bus to their destination. Based on the evidence provided I am not satisfied that the photos were taken on the evening on which the complaint at hand arose and are not, therefore, particularly useful in establishing any facts related to the alleged incident. The complainant submitted a copy of a report forwarded by him to the Gardai in this matter. In that statement the complainant clearly states that the bus driver did in fact eventually manoeuvre the bus level with the pavement. This is something that was repeatedly and strenuously denied by the complainant in his dealings with the Tribunal. Either the report to the Gardaí is inaccurate or the complainant's account to the Tribunal is inaccurate.
Notwithstanding the fact that they are not legally required to do so, the respondent has provided evidence that the entire Dublin Bus fleet of buses has progressively been made disabled accessible. The entire route on which the complainant was travelling on the evening in question is now disabled accessible. The respondent also submitted papers which demonstrate their commitment to providing a service which will be reviewed on an ongoing basis to ensure that all customer considerations are taken on board, including those of disabled passengers.
7 Conclusions of the Equality Officer
I am satisfied, based on a close examination of all of the evidence presented, that the bus which was driven by Mr. Sonmez on the evening in question was driving a wheelchair accessible bus with a faulty wheelchair ramp. The mere fact that the ramp was on the bus demonstrates that the respondent was providing some transport vehicles suitable for the needs of disabled passengers. This of its own right did not give rise to a legitimate expectation on the part of the complainant that it should be operational at that particular moment in time. I fully take on board that it was preferable to have the bus operating as a standard, non-wheelchair accessible bus than to have it lying idle until such time as the ramp was repaired. Notwithstanding this, I am satisfied that, in the circumstances, the respondent had a responsibility and a duty to explain to the complainant that the ramp facility was not available, to treat the complainant with courtesy and to make every reasonable effort to assist the complainant. I am also satisfied that the bus driver Mr. Sonmez and the driver of the second bus fulfilled the respondent's duty in that regard and made every effort to explain the position to the complainant and assist the complainant to board the bus. While it would be most satisfactory that the complainant and all other wheelchair users and disabled persons would have access on a current basis to all facilities/services if and when they require them, the reality is that there is no legal requirement that this is the case in relation to road passenger services for the reasons set out above. I am also satisfied, based on the evidence submitted, that the complainant was less than helpful in this matter in the manner in which he dealt with the incident and seemed to inflame it as much as possible. He had a companion photographing a driver who is of foreign origin and who was experiencing difficulties understanding (i) what the complainant was shouting at him, (ii) what the complainant's companion, also a foreign national, was saying to him, and (iii) was dealing with a stressful situation in which other passengers were giving out to him in an angry fashion for the delay to their journey, none of which the complainant has made any allowances for whatsoever. The complainant, in his written statements to the Tribunal stated that he was the person taking the pictures of the driver but confirmed at the Hearing that it was, in fact, an acquaintance of his who took them. This person did not appear as a witness at the Hearing and I would have to question what he was doing with a camera, late in the evening, taking pictures on behalf of the complainant of a bus driver who had arrived at the stop at that time and who was, I am satisfied, trying to assist the complainant.
I am satisfied that the driver indicated to the complainant that the wheelchair ramp was not operating. When the complainant objected the bus driver made various attempts to manoeuvre the bus and deploy the ramp. He spent a total of some twenty minutes doing everything he could to get the defective ramp working in difficult circumstances. He did not simply leave the bus stop and make no attempt to assist the complainant. He ultimately succeeded in deploying the ramp, with the assistance of another driver, for use by the complainant. The latter declined to board the bus. The complainant did not make any attempt to board the second bus when it arrived at the stop which was an option open to him which he does not appear to have considered. Having declined to board the bus the complainant gave a report to the Gardaí and awaited the arrival of another, third, bus which he boarded without any difficulty. Ultimately, therefore he availed of the service provided by the respondent, albeit somewhat later than he expected to.
I am satisfied that the bus driver did not harass the complainant in the course of the incident in question, but, rather, was attempting to explain his side both to the complainant and the irate passengers. The driver was simply telling the other passengers that he was trying to do his best to help the complainant. No credible evidence was presented to show that the driver was in any way trying to incite the other passengers against the complainant. Both parties have provided evidence that the driver addressed himself to the other passengers, but I am entirely satisfied that the driver did so in response to angry complaints being made by the passengers and not to incite or inflame them against the complainant.
Summary
Based on a detailed consideration of all of the relevant factors in this matter I am satisfied, on the balance of probabilities, that (i) the respondent did not either directly discriminate against the complainant on any of the grounds alleged or fail or refuse to do all that was reasonable to accommodate the needs of the complainant in accordance with Section 4(1) of the Equal Status Act. Even had the respondent failed or refused to do so, this would have been deemed reasonable as such provision would give rise to a cost, other than a nominal cost, to the respondent as detailed at 6.2 above and (ii) the respondent did not harass the complainant on any of the grounds alleged.
7 Decision
The complainant was not discriminated against or harassed by the respondent on the gender, family status, age, disability or victimisation grounds in terms of Section 3(1) (a) and 3(2)(a)(c)(f)(g) and (j), 4 and 5(1) of the Equal Status Act 2000. The finding is in favour of the respondent.
__________________________
Dolores Kavanagh
Equality Officer
29 May, 2003