Equal Status Act 2000-2004
Equality Officer Decision DEC-S2008-026
Jennifer Kane and David Kane
(Represented by Ms. Mary Gordon B.L.)
-v-
Eirjet Limited (In Voluntary Liquidation)
Keywords
Equal Status Acts 2000-2004 - Direct discrimination, Section 3(1)(a) - Family Status Ground, Section 3(2)(c), Disability Ground, Section 3(2)(g) – Disability Ground by association, Section 3(1)(b) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000-2004
This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2004. In accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director has delegated the complaint to me, Enda Murphy, 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 Acts, 2000-2004. The hearing of the case took place on 18th February, 2008.
1. Dispute
1.1 This dispute concerns complaints by Ms. Jennifer Kane, and her son David, that they were discriminated against by Eirjet Limited in terms of Sections 3(1)(a), 3(1)(b), 3(2)(c) and 3(2)(g) of the Equal Status Acts, 2000 to 2004 when they were requested to vacate their allocated seats for take-off and landing during the course of a flight on board the airline operated by the respondent. Both of the complainants also claim that they were subjected to harassment by the respondent in terms of Section 11 of the Equal Status Acts, 2000 to 2004.
2. Summary of the Complainant’s Case
2.1 Ms. Jennifer Kane and her adult son David, who has Down Syndrome, were scheduled to fly with the respondent airline from Dublin Airport to Salou in Spain on 12th May, 2006. The complainants were travelling as a party of six adults and on arriving at Dublin Airport were the first passengers to check in for the flight on this date. As a result they were allocated six seats with extra leg room by the check-in assistant and these seats were situated beside the emergency exits on the aircraft. The flight was scheduled to depart from Dublin Airport for its destination at 12:20 p.m. but it was delayed by approx. nine hours and eventually departed at around 9 p.m. that evening. The complainants and the other members of their party boarded the aircraft and took up the seats by the emergency exits that had been allocated to them at check-in. However, before the aircraft commenced its take-off a male member of the cabin crew, named Miguel, approached the area where the complainants were seated and pointed at Mr. David Kane, who was seated between his two uncles, and stated in an abrupt manner that “this young man will have to move”. He also indicated that another member of their party would have to move from their allocated seat. Ms. Jennifer Kane was taken aback by this request and asked the cabin crew member for an explanation as to why they were being requested to vacate their seats and she was informed that it was necessary for health and safety reasons. The cabin crew member stated that the captain was not going to proceed with take-off until David and another member of their party vacated their seats.
2.2 Ms. Jennifer Kane was not satisfied with this response and requested a further explanation from the head cabin crew member, Mr. John Fitzsimons, who stated that it would be necessary for them to move seats in order to comply with health and safety regulations and he suggested that the complainants move seats for the duration of take-off and landing. Ms. Jennifer Kane and her son, David, vacated their seats and were moved to the rear of the aircraft by the cabin crew where they were re-seated for the duration of take-off and landing. This request to vacate their seats was the source of much upset and embarrassment to both of the complainants. When the complainants were being shown to their alternative seats they were subjected to jibes and snide comments by other passengers and the incident was portrayed in a manner as if they were causing a further delay to take-off and were being removed from their seats for causing trouble. The complainants contend that the entire handling of the incident by the cabin crew resulted in passengers who were already irate because of the existing delay in the flight becoming even more irate. The complainants returned to their original seats after the aircraft was airborne and during the course of the flight Ms. Jennifer Kane asked Mr. John Fitzsimons if the request to vacate their seats was attributable to the fact that David had Down Syndrome and he replied “well actually yes”. Both of the complainants were deeply upset by the incident and Ms. Jennifer Kane expressed her dissatisfaction regarding their treatment to the cabin crew who stated that the request was in keeping with company policy. Ms. Jennifer Kane completed a complaint form regarding the incident while on board the flight and returned the complaint form to a member of the cabin crew before disembarking from the aircraft.
2.3 The complainants also travelled with the respondent airline on the return leg of their journey but did not experience any similar difficulties on this occasion. Ms. Jennifer Kane claims that the respondent must have realised that it had treated them very badly on the outward journey as their group were reserved front row seats on the return flight and they were also afforded special treatment such as complimentary food and drink. Ms. Jennifer Kane received a telephone call from the respondent’s Customer Service Department following their return to Ireland in which the customer service representative apologised for the treatment that they had been afforded on the outward flight to Salou.
2.4 The complainants claim that the request by the cabin crew to move from their allocated seats on the flight to Salou was motivated purely on the basis that David has Down Syndrome. The complainants further claim that the resultant atmosphere for the duration of the flight was both hostile and humiliating and their dignity was violated as a result of the treatment that they were afforded by the respondent. The complainants also contend that their treatment by the respondent’s cabin crew during the course of this flight amounted to harassment.
3. Summary of the Respondent’s Case
3.1 The respondent company went into voluntary liquidation on 6th November, 2006 and the Liquidator subsequently informed the Tribunal in correspondence that he had written to the Managing Director of the respondent company on several occasions in relation to these complaints but had not received any response. The Liquidator was notified of the date of the hearing by the Tribunal on 25th January, 2008 but neither the Liquidator nor the respondent attended at the hearing of these complaints. No evidence was therefore presented by or on behalf of the respondent.
4. Conclusions of the Equality Officer
4.1 At the outset, the burden of proof rests with the complainants. I must, therefore, consider whether the complainants in this case, have established a prima facie case of discrimination. In order to do so the complainants must satisfy three criteria. (1) It must be established that they are covered by the relevant discriminatory grounds i.e. the family status and/or disability grounds in this case. (2) It must also be established that the actions complained of actually occurred and (3) it must be shown that the treatment of the complainants was less favourable than the treatment that would be afforded to another person in similar circumstances. If the complainants succeed in establishing a prima facie case of discrimination, the burden of proof then shifts to the respondent who must then rebut the case of the complainant if its defence is to succeed. I will now proceed to examine each of the complaints on the grounds claimed.
Mr. David Kane, Disability Ground
4.2 Mr. David Kane has Down Syndrome and I am satisfied therefore that he is a person with a disability within the meaning of the Equal Status Acts, 2000-2004[1]. This fact satisfies the first of the three criteria set out above. I am satisfied that the incident complained of actually occurred in that the complainant and another member of the party with which he was travelling were requested by the respondent’s cabin crew to vacate their seats for take-off and landing. Therefore, the second criterion outlined above has been met. The third criterion to be satisfied in order for the complainant to establish a prima facie case of discrimination is that of less favourable treatment, i.e. he must show that the treatment he received was less favourable than that which would have been given to another person, in similar circumstances, who either did not have a disability or had a different disability.
4.3 The complainant claims that he was requested to vacate his seat by the respondent’s cabin crew prior to the take-off of the flight purely on the basis of his disability. I have taken note of Ms. Jennifer Kane’s evidence that she was informed by both of the cabin crew members who were on duty on the flight that the complainant was requested to vacate his seat for health and safety reasons. In considering this issue, I note that it is stated in the respondent’s “Passenger Information Manual” at page 7 that “seats in certain rows including emergency exit rows may only be occupied by able-bodied adult passengers who speak English and are willing and able to assist the cabin crew in the unlikely event of an emergency evacuation of the aircraft”. It is also stated at page 13 of this Manual that passengers with disabilities should not be seated in Emergency Rows 12 and 13. I further note that the operators of commercial passenger airlines are obliged to comply with both national and European Union safety regulations which regulate the allocation of seats on an aircraft that permit direct access to emergency exits[2]. These regulations require that airlines have procedures in place to ensure that passengers are seated, where in the event that an emergency evacuation is required, that they may best assist and not hinder evacuation from the aircraft. In order to facilitate this requirement, only passengers who appear reasonably fit, strong and able to assist the rapid evacuation of an aeroplane in an emergency should be allocated seats which permit direct access to emergency exits. In this regard, passengers who, because of their condition, might hinder other passengers during an evacuation or who might impede the crew in carrying out their duties, should not be allocated seats which permit direct access to emergency exits. The regulations stipulate that certain categories of passengers are among those who should not be allocated seats which permit access to emergency exits, for example, children (whether accompanied or not), passengers who are either substantially blind or substantially deaf to the extent that might not readily assimilate printed or verbal instructions given and passengers suffering from obvious physical or mental handicap to the extent that they would have difficulty in moving quickly if asked to do so[3].
4.4 It would appear that the principal reason for not allocating seats that are adjacent to emergency exits to disabled passengers is purely for safety purposes on the basis that a person with a disability may impede the cabin crew in carrying out their emergency duties, may obstruct access to equipment or hinder aircraft evacuation. Section 14 of the Equal Status Acts provides a defence for a service provider who attempts to ensure compliance with these or any other legislative requirements. In this regard, I am satisfied that commercial passenger airlines operating within this jurisdiction are obliged to abide by the aforementioned EU regulations and in doing so are required to impose certain prohibitions regarding the allocation of “emergency exit seats” to certain categories of passengers who have a disability. However, the regulations do not appear to impose a requirement that all disabled passengers be prohibited from sitting at an emergency exit but rather it would appear to apply to passengers who because of the nature of their disability would not be considered able bodied, who would have difficulty in moving quickly in the event of an emergency or those, who because of their condition, might hinder other passengers during evacuation or impede the cabin crew in carrying out their duties.
4.5 In the present case the evidence is that the complainant presented in person at the check in desk, handed his passport to the check-in assistant and lifted his luggage onto the conveyor belt in the normal manner. The complainant and the other five members of his party were subsequently allocated the emergency exit seats by the check in assistant. I am satisfied that the check-in assistant would have been aware of the nature of the complainant’s disability at this stage. However, based on the evidence presented, and in apparent contravention of the respondent’s stated policy regarding seating allocation, she still proceeded to allocate the complainant an emergency exit seat. It was only when the complainant and the other members of his party boarded the aircraft and took up their allocated seats that the issue of health and safety was raised by the cabin crew. At the hearing of the complaint, counsel argued that the complainant, Mr. David Kane is able-bodied and given the level of his physical ability and intellect, that he is not the type of person, who in terms of the aforementioned safety regulations, should be prohibited from occupying a seat adjacent to an emergency exit. In the present case it would appear that the cabin crew member, immediately upon seeing the complainant, noticed that he had a disability and summarily decided that he was the type of passenger, who because of his disability, was prohibited from sitting in an emergency exit seat.
4.6 I must, therefore, decide whether the actions of the cabin crew in requesting the complainant to move from his seat in such circumstances amounted to less favourable treatment on the grounds of his disability. In deciding this issue, I am mindful of the fact that the cabin crew on board an aircraft are obliged to comply with and enforce all of the safety requirements regarding the seating of passengers and that a failure to do so could potentially compromise the safety of all passengers in the event of an emergency. The overall safety of the aircraft and its passengers is a matter of paramount importance and I am of the opinion that members of a cabin crew would be neglecting their professional obligations and thereby failing in their duty of care to the passengers on board if they failed to adhere to the obligatory safety requirements. Having regard to the nature of the complainant’s disability and in light of the obligations that are imposed upon airline operators to comply with safety requirements regarding the allocation of seats, I find that the actions of the respondent in requesting Mr. David Kane to vacate the seat that he had been allocated beside the emergency exit and to move to an alternative seat was in compliance with the aforementioned safety obligations. In the circumstances, I find that Mr. David Kane was not subjected to less favourable treatment on the grounds of his disability and accordingly, that he has failed to establish a prima facie case of discrimination on the disability ground.
Ms. Jennifer Kane, Disability be Association Ground
4.7 Ms. Jennifer Kane claims that she was discriminated against by the respondent by virtue of her association with a person who has a disability i.e. her son David in the instant case. Section 3(1)(b) of the Equal Status Acts, 2000 to 2004 states that:
“(1) For the purposes of this Act, discrimination shall be taken to occur –
(b) where a person who is associated with another person –
(i) is treated by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and
(ii) similar treatment of that other person on any of the discriminatory grounds would by virtue of paragraph (a), constitute discrimination”
I am satisfied that Ms. Jennifer Kane was associated with a person who has a disability and was so associated by the respondent’s cabin crew in the present case. I am also satisfied that the actions complained of actually occurred, in that another member of the party with which Mr. David Kane was travelling, was also requested to vacate their emergency exit seat by the cabin crew after boarding the aircraft. However, as I have already found that Mr. David Kane has not established a prima facie case of discrimination on the disability ground, it follows, therefore, that Ms. Jennifer Kane cannot, in these circumstances, have been discriminated against, by association with Mr. David Kane on the disability ground.
Ms. Jennifer Kane, Family Status Ground
4.8 Ms. Jennifer Kane also claims that she was discriminated against by the respondent on the family status ground. Section 2(1) of the Equal Status Acts, 2000 to 2004 defines family status, inter alia, as meaning:
“family status means being pregnant or having responsibility –
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, …”
In the present case, Ms. Jennifer Kane was accompanied on the flight by her nineteen year old son David who has Down Syndrome. I am therefore satisfied that the family status ground is applicable to Ms. Jennifer Kane in this case. I have noted that the member of the cabin crew that approached the area where the complainants were seated indicated that both Mr. David Kane and another member of the party would have to vacate the seats that they were occupying beside the emergency exits. Ms. Jennifer Kane stated that following this request she nominated herself as the other member of the party that would move seats with her son David. Ms. Kane contended the reason that another member of their party was also requested to move seats by the cabin crew was to make it look as if they were not picking upon David because of his disability. In considering this issue, I am of the view that it would not be unreasonable, in circumstances where a person with a disability was being requested to move to an alternative seat on an aircraft in order to comply with safety regulations, to also request the parent or the resident primary carer of that person to also move for the purposes of accompanying the other person.
4.9 Notwithstanding this, I am also of the view that the manner in which the request was approached and handled by the cabin crew in the present case was entirely inappropriate and unsatisfactory from a customer service perspective. Given the circumstances that pertained and the requirement that Mr. David Kane be re-seated in order to comply with passenger seating regulations, it should in my opinion, have been incumbent on the cabin crew, both as a matter of courtesy and good customer service, to approach the complainants and to clearly explain the requirements and restrictions that pertained with regard to the allocation of emergency exit seating on the aircraft. Having regard to the manner in which the entire incident was handled by the respondent’s cabin crew it is clear that the complainants were not afforded these basic levels of customer service. Whilst I am of the view that this treatment was totally unsatisfactory in terms of customer service standards, I am not satisfied that the request made by the cabin crew member for another member of the party to move from their allocated seat, in the circumstances, amounts to less favourable treatment within the meaning of the Equal Status Acts, 2000 to 2004. Accordingly, I find that Ms. Jennifer Kane has failed to establish a prima facie case of discrimination on the family status ground.
5.1 Harassment
5.1 The complainants claim that they were harassed by the respondent contrary to the abovementioned provisions of the Act. Harassment is defined in Section 11(5) of the Equal Status Acts, 2000 to 2004 in the following terms:
“(a)(i)references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and being 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.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.
The complainants claim that after they had boarded the aircraft and taken up their allocated seats one of cabin crew members approached the area where they were seated and pointed at Mr. David Kane and stated in a very abrupt manner that he would have to vacate his seat. The complainants were not offered any explanation for the request at this stage and were subsequently informed that the captain would not proceed with take-off until they had vacated their seats. The complainants after seeking an explanation were moved to alternative seats but as they were doing so were subjected to jibes and snide comments from other passengers and it was contended that the incident was portrayed as if they had been causing trouble and as a result were being shown to alternative seats. The complainants stated that they were both deeply upset and embarrassed by the incident and that the resultant atmosphere on the flight was hostile and humiliating. The complainants contended that their dignity was violated by the manner in which they were treated during the course of the incident.
5.2 I have found the evidence of the complainants to be very credible in relation to their treatment by the respondent on this flight. In the circumstances, I am of the view that, when the cabin crew became aware that Mr. David Kane had a disability, both he and his mother should have been approached in a courteous manner and afforded an explanation as to why they were being requested to vacate their seats i.e. in order to satisfy safety requirements regarding the seating of passengers at emergency exits. I am satisfied that the attitude adopted by members of the cabin crew and the manner in which the request was communicated to the complainants was totally inappropriate and unacceptable in the circumstances. Having regard to the fact that the flight had already been delayed for nine hours it is probable by the time of departure that there was a certain amount of dissatisfaction and frustration among other passengers on board the aircraft. Given these circumstances, I am of the view that the incident involving the complainants could have been construed by other passengers as if they were being troublesome, thereby exasperating the sense of tension that already existed on the aircraft. I am satisfied that the complainants felt intimidated by the atmosphere that prevailed on the flight as a result of this incident and that the sense of upset, humiliation and embarrassment they felt was as a direct consequence of the treatment that they were afforded by the members of respondent’s cabin crew that they had dealt with on this flight. I am therefore satisfied that the complainants have established a prima facie case of harassment on the disability ground in that their treatment on the flight can reasonably be regarded as degrading, intimidating and a violation of their dignity. As no evidence has been presented on behalf of the respondent, I thereby find that it has failed to rebut the allegation.
6. Vicarious Liability
6.1 While the conduct which constituted harassment is directly attributable to the members of the cabin crew that dealt with the complainants on this occasion Section 42(1) of the Equal Status Acts provides that:
“Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act, as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”
As the members of the cabin crew were clearly acting within the scope of their employment during the course of this flight, I find that the respondent is vicariously liable for their actions in accordance with Section 42(1) of the Equal Status Acts, 2000 to 2004.
6. Decision
6.1 On the basis of the foregoing, I find that both of the complainants, Mr. David Kane and Ms. Jennifer Kane were harassed by the respondent in terms of Section 11(5) of the Equal Status Acts, 2000 to 2004.
6.2 In accordance with section 27(1)(a) of the Act, I hereby order that the respondent pay both of the complainants, Mr. David Kane and Ms. Jennifer Kane, the sum of €1,000 each for the effects of the harassment.
Enda Murphy
Equality Officer
18th April, 2008