Brendan Campbell v Bus Eireann
Subject matter of the case
The complainant claims that discriminatory treatment and harassment on the ground of disability were directed against him by the respondent's employees in the period commencing 4 February, 2004 and ending on 23 February, 2004 culminating in the refusal of service.
The respondent denies the various allegations but accepts that the complainant is barred from its services. However, it contends that this is because of his unacceptable behaviour.
Decision
The Equality Officer concluded that the evidence of the complainant and the material he had submitted did not establish that he has been discriminated against or harassed on the ground of his disability. However, the Officer suggested that the respondent should consider if they could find a way to accommodate the complainant on their services again, if they consider it necessary by requiring him to give a written undertaking as to his future behaviour.
Equal Status Acts 2000 to 2004
Decision No. DEC-S2005-197
Brendan Campbell v Bus Eireann
Introduction
1. The complainant referred a case under the Equal Status Act 2000 to the Director of Equality Investigations on 24 March, 2004. In accordance with the due delegation to me by the Director of her powers under the Equal Status Acts 2000 to 2004, I investigated the case.
Subject matter of the case
2. The complainant claims that discriminatory treatment and harassment on the ground of disability were directed against him by the respondent's employees in the period commencing 4 February, 2004 and ending on 23 February, 2004. In written material which was supplied to the Tribunal with his complaint, supported by his evidence at the hearing, which took place on 14 October, 2004, he alleged that
- on 4 February, 2004, he was intimidated by a bus driver in Kingscourt, Co. Cavan who told the complainant not to speak to him;
- on 17 February 2004, the same bus driver abused him in Kilmainhamwood, Co. Meath because of a letter of complaint he had sent to Bus Eireann on foot of the incident of 4 February. Later on 17 February, when the complainant got on the bus to go to Navan, the same driver made hand signals at him;
- on 18 February, 2004, the complainant sought to get the bus from his home in Kilmainhamwood to Kingscourt and the same driver passed him and was laughing at him;
- on 23 February, 2004, the same driver refused to allow the complainant to board the bus at Kilmainhamwood to go to Navan. The complainant then proceeded to another location to take another bus service to Dublin where he called at the offices of the respondent to make a complaint. The respondent's inspector spoke to the driver who said he was refusing to carry the complainant for safety reasons. The complainant was not told what these safety reasons were. Another inspector accompanied the complainant to Kilmainhamwood on the bus. When the complainant got off the bus, the inspector did likewise and told him that he was barred from using the Kingscourt bus service. The inspector referred to the fact that the bus had been delayed by 20 minutes while the complainant's situation was being discussed.
3. The complainant also submitted a newspaper report of a court case in which 2 youths were convicted of a breach of the peace arising from remarks they made to him on a bus in Navan in 2002.
4. The complainant says he is put to considerable inconvenience by his being barred from the Kingscourt service. In particular, he has to use an alternative service which means he has to walk one and a half miles from his home.
5. In response to the complainant's letter to them arising from the alleged incident on 4 February, 2004, the respondent's Services Manager wrote to him on 10 February expressing deep regret at any difficulties the complainant may have experienced and his disappointment at the lack of courtesy afforded to him by the driver. The letter stated that the driver had been interviewed and suitably reminded of the company's customer care policy and the need to treat passengers with care and consideration at all times. The Services Manager assured the complainant that corrective steps would be taken in this regard and asked that he accept his sincere apologies for any inconvenience caused. A further letter was sent to the complainant by the Services Manager on 3 March stating that a full investigation had been carried out and, in view of the outcome and the Road Traffic Act 1961, he wished to confirm that travel facilities on Bus Eireann services would not be afforded to him in future.
6. In a submission and at the hearing, the respondent's representatives stated that the Services Manager, at the time he wrote the letter of 10 February, did not have the advantage of knowing the full story of the complainant's behaviour on their services. His complaint of 4 February was treated as one by an innocent passenger who felt he had not been treated with courtesy. Following further investigation, refusal of service to the complainant was confirmed by the letter of 3 March, 2004.
7. In its submission and at the hearing, the respondent denies discriminating against the complainant on the ground of disability. It accepts that he has been barred from its services but contends that this was because of his destructive and intimidatory behaviour on the bus. This took the form of shouting and roaring and arguing with other passengers. Passengers had complained about his behaviour but they had refused to write letters of complaint because they were afraid of the complainant. There were also problems with the strong smell from a substance in the bandage on his knee which may be a consequence of the bandage not being regularly changed.
8. The driver referred to in relation to the alleged incidents of February, 2004 denied the various allegations about shouting at the complainant, making hand signals or laughing at him. He accepted that he had refused to carry the complainant on 23 February, 2004 but this was because of his behaviour and not because of a disability.
Matters for consideration and conclusions
9. I have to consider whether the complainant has a disability which distinguishes him from other people who do not have a disability or who have a different disability. (See section 3(2)(g) of the Equal Status Act 2000.)
10. In its submission, the respondent queried what disability the complainant had and surmised that it was his problem with his knee to which he had referred in his letters, noting at the same time that this disability did not prevent him from travelling by bus. At the hearing, the complainant's social worker, who attended as a support person, informed me that he was being assessed for another disability as well. All correspondence received from the complainant refers to his knee problem. The possibility of another disability as well was only mentioned for the first time at the hearing and no reliance was placed on it by the complainant in the written material submitted by him or in his evidence at the hearing. Therefore, I consider that the disability at issue for the purpose of this case is the complainant's infirmity of the knee.
11. The next issue is whether the complainant was discriminated against on the ground of disability by being barred from the respondent's services.
12. It is significant that, in the letter he submitted about the refusal of service on 23 February, 2004, he states that there were other people with disabilities availing of the service and that he was the only person singled out for discrimination. At the hearing, the complainant accepted that he had seen other people with mobility problems availing of the bus service. He also suggested at the hearing that his dispute with the respondent may have stemmed from the fact that the persons who had abused him on the bus in Navan in 2002 were later prosecuted. I consider that the evidence of the complainant and the material he has submitted does not establish that he has been discriminated against on the ground of his disability.
13. At the hearing, it was put to the complainant by the respondent's solicitor that he used to respond inappropriately by shouting, swearing etc. in response to the comments of other passengers. While he denied this, I believe that it is likely that he reacted in this way to hurtful comments relating to his disability and that this, not the fact of the disability itself, is the source of his difficulty with the respondent. A witness for the respondent at the hearing, a bus driver who had served on the route, said that it would not be apparent to the driver what had started the row - he would become aware of it only when he would hear, and see in the mirror, the actions of the complainant. It has not been suggested by the respondent, however, that the complainant would start shouting etc. without provocation.
14. In his complaint form, the complainant also alleges harassment on the ground of disability. Section 11(1) of the Equal Status Act 2000 prohibits a person from harassing any person who avails or seeks to avail himself or herself of any service provided by the first mentioned person. Section 11(2) prohibits a person who is responsible for the operation of any place at which services are offered to the public from permitting a third party to engage in harassment of anyone who is availing of the service. Section 11(5) provides 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 to him or her. The conduct alleged on the part of the bus driver, whether or not it happened, does not amount to harassment so defined as it is not based on the discriminatory ground of disability. I note that there is no allegation against the respondent of permitting the harassment of the complainant by other passengers. The events complained of are confined to the period 4 to 23 February, 2004 and do not include allegations concerning the conduct of other passengers which might entail liability on the part of the respondent.
15. I did consider whether the alleged acts of the bus driver could amount to discrimination on the victimisation ground even though the complainant has not alleged this in his complaint form. He does, however, allege in material submitted to the Tribunal that, on 17 February, 2004, he was subjected to intimidatory behaviour by the driver because of a complaint he had made to Bus Eireann about an alleged incident on 4 February. The relevant element of discrimination on the victimisation ground in this instance would be that set out in section 3(2)(j)(iv) i.e. that the person has been treated less favourably because he or she opposed by lawful means an Act which is unlawful under the Equal Status Act. At the hearing, I asked the solicitor for the respondent if it was open to me, in certain circumstances, to make a finding of discrimination on the victimisation ground and I have taken note of his observations. In line with my conclusion on the question of whether there was discrimination or harassment on the disability ground, I consider that the complainant, in complaining the driver to his employer, was not opposing behaviour that is unlawful under the Equal Status Act because any difference in the treatment of the complainant on 4 February was not based on his disability.
16. Accordingly, I find that the complainant has failed to establish facts from which it might be presumed that discrimination or harassment occurred contrary to the Equal Status Act.
17. I should, however, add that it is somewhat disquieting that the complainant is the only person involved in incidents pertaining to him who has been barred from using Bus Eireann services. At the hearing, I asked the respondent's witnesses what was the position of the persons who had been convicted of a breach of the peace arising out of remarks made to the complainant in a bus in Navan in 2002. I was informed that these persons apparently no longer travel on the bus but it is clear that they are not barred from doing so. It appears to me that the complainant is a vulnerable person who is put to considerable inconvenience through not having access to the services of the main bus company. It would be to the credit of the respondent if they could find a way to accommodate the complainant on their services again, if they consider it necessary by requiring him to give a written undertaking as to his future behaviour, and I suggest that they consider such a course of action.
18. There is one final point I need to mention even though it does not play a part in my decision. When questioning the complainant at the hearing, the respondent's solicitor put it to him that he had been prosecuted for a public order offence in 2002. The basis for this allegation was a newspaper report but, as the solicitor did not have a reference for this report, I asked him to provide such a reference within 2 weeks of the date of the hearing if he wished to rely on this information. The complainant denied that he had been prosecuted as alleged. However, he wrote to me on 16 October to say he had made a mistake and that he had in fact appeared in court on such a charge but was not convicted. The complainant also explained the circumstances of the incident which involved another man, with whom he had a dispute, being charged also. In addition, his social worker wrote to me on the matter stating that, in her opinion, there was no deliberate evasion on the part of the complainant at the hearing. She explained why she was of this view. The respondent, for its part, submitted a copy of a report in the Anglo-Celt of 22 January, 2003 concerning a court case and this report is consistent with the complainant's account of 16 October. Because of the findings I have made in the paragraphs above, it was not necessary for me to consider this issue further.
19. In summary, I find that the complainant fails in his claim under the Equal Status Act but suggest that, in the circumstances, the respondent might consider how he might be accommodated on its services again.
John Hurley
Equality Officer
2 December, 2005