Catrina Kelly
V
Panorama Holiday Group Limited
(Represented by Crowley Millar Solicitors)
1. Dispute
1.1 This dispute concerns a claim by Ms Catrina Kelly that on 7th March, 2004, she was discriminated against on the family status ground by the respondent. The complainant referred a claim 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 then delegated the case 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.
2. Summary of Complainant's Case
2.1 The complainant states that she was discriminated against by the respondent when she was refused passage on a return flight, following a holiday which she had booked with the respondent, because she was pregnant.
3. Summary of Respondent's Case
3.1 The respondent states that the complainant was refused passage on the return flight by the (named) airline carrier and that this was entirely out of their hands. In the circumstances the named respondent states that the incorrect respondent has been named by the complainant. Notwithstanding this the respondent states that the complainant was refused passage on the basis that she did not possess the correct documentation required by the airline carrier at the time of the refusal and that this was not discriminatory.
4. Background
4.1 The complainant booked a two week holiday abroad with the respondent company. In the course of communications with the respondent company the complainant was advised to seek her doctor's opinion as to her fitness to fly in circumstances whereby she would be twenty eight weeks pregnant when embarking on the holiday. The complainant was also advised to contact her insurance provider to ensure that she would be covered in the circumstances.
4.2 As the complainant was scheduled to attend for a routine visit with her doctor she sought the latter's advice as to her fitness to fly, given that she was pregnant. Her doctor advised that it would be in order for her to travel. The complainant states that she was not informed by the respondent company at any time that she should seek specific documentation attesting to her fitness to fly. For this reason she did not seek such documentation in the course of her visit to her doctor.
4.3 When departing from Dublin for the holiday, accompanied by her family, the complainant was asked at the check in desk how many weeks pregnant she was at that time and how long she would be away. The complainant told the check in attendant that she was twenty eight weeks pregnant and that she would be returning in two weeks. She was not asked to provide any documentation as to her fitness to undertake the journey/flight.
4.4 On 7th March 2004 the complainant, accompanied by her family, arrived at the airport to check in for the return flight to Ireland. Her mother approached a group of what appeared to be holiday representatives and asked for assistance for her daughter, indicating that the complainant was eight months pregnant. One such representative approached the complainant a short time later and asked whether she was in fact eight months pregnant. The complainant clarified to the representative that she was actually seven months (30 weeks) pregnant. A few minutes later the representative reverted to the complainant and stated that she was awaiting clearance to bring the complainant's group "straight through" the check in procedure.
4.5 When the group was nearing check in desk the same representative asked for their tickets and stated that she needed to "check with the supervisor". The representative took the tickets and went to another area to speak with another person. On her return she indicated that the complainant was "not cleared to fly". The representative also stated that it would be necessary for the complainant to attend at a (named) clinic to obtain a medical certificate indicating her (the complainant's) fitness to fly. The representative indicated that the rest of the group should proceed to check in at which time the complainant's father stated that if the complainant did not board the flight then none of the group would do so.
4.6 The complainant attended at the clinic in question and was informed that the clinic could not provide the documentation required. As a consequence, and in light of the timeframe for check in and boarding, the complainant was unable to travel on the return flight.
4.7 The complainant states that the respondent's refusal to clear her to board the return flight was discriminatory on the family status ground.
5 Prima Facie Case
5.1 At the outset, I must first consider whether the existence of a prima facie case has been established by the complainant. There are three key elements which need to be established to show that a prima facie case exists. These are:
(a) Applicability of a discriminatory ground (e.g. the Family Status ground)
(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 the same, or similar circumstances.
5.2 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. If they succeed in establishing a prima facie case, the burden of proof then shifts to the respondent to rebut the inference of discrimination.
6 Prima Facie Case - Complainant
6.1 The complainant was pregnant on the date in question. This fulfils (a) at 5.1 above. Both parties agree that the complainant was refused clearance to board the return flight from her holiday. However, the respondent states that the clearance to board the flight was refused by the airline carrier at check in and not by any of their staff. The respondent states that they have no authority to check passengers onto a flight and this is the responsibility of the airline. At the Hearing of this matter the complainant could not indicate clearly the identity of the employer of the representative who relayed the information to her in relation to the refusal to clear her for the flight.
The complainant did not seek clarification at the time as to the precise nature of the refusal to provide clearance for her to fly, or the requirement for her to provide medical documentation. Nor did she seek to clarify the precise identity of the person or company who was refusing clearance to her. In the circumstances it is uncertain that the named respondent is in fact the correct respondent in this matter and therefore (b) at 5.1 above has not been clearly fulfilled.
6.2 Notwithstanding the above, in relation to key element (c) at 5.1 it is common case that the complainant was refused clearance to board the return flight not simply because she was pregnant but rather, because it had been indicated by a member of her party to a representative in the airport that she was in excess of twenty eight weeks pregnant. This raised issues around the safety of the complainant, her unborn child and other passengers and crew of the flight in question. It was for this reason that medical clearance was required indicating the complainant's fitness to fly in those specific circumstances.
In short there were concerns about the physical welfare of the complainant, her unborn child and the potential effect on other passengers and airline staff should she encounter any difficulties as a result of her pregnancy on the return flight. I am satisfied that the respondent and/or airline carrier would take similar precautions in a range of situations involving potential medical difficulties. The key element (c) at 5(1) above has not therefore been fulfilled.
6.3 As the precise identity of the person or body who refused clearance to the complainant to board the return flight in question is unclear and in circumstances where the pregnancy was not the primary cause of the refusal but rather, the particular stage of the pregnancy which could give rise to medical difficulties on the flight, I am satisfied that the complainant has not established a prima facie case of discrimination on the family status ground. It is not therefore necessary for the respondent to provide a rebuttal.
7. Other Matters
I note that the airline carrier in question, while chartering aircraft to, among others, the respondent, retains at all times the right to make decisions as to the carriage of passengers and/or cargo aboard its aircraft and in such matters is not therefore acting as an agent for the respondent. However, I also note from the evidence submitted in this matter that the respondent does not make clear in the literature which it issues to its clients that documentation of a very specific nature may be required by the airline carrier in circumstances such as those which the complainant experienced. I recommend that the respondent takes immediate steps to rectify this.
8 Decision
The complainant has failed to establish a prima facie case of discrimination on the family status ground.
______________________________
Dolores Kavanagh
Equality Officer
22 January, 2008