Neill King
v
Dublin Bus
(Represented by Mr. Colm Costello, Solicitor)
1. Dispute
1.1 This dispute concerns a claim by Mr. Neill King that he was treated in a discriminatory manner by the respondent, contrary to Section 5, in terms of Section 3(1) (a), 3(2) (g) and (j) of the Equal Status Act 2000. 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 the Complainant's Case
2.1 The complainant, who is blind and a wheelchair user, states that a bus driver, a member of the respondent's staff, discriminated against him and victimised him on the grounds of disability in relation to his access to and use of a bus on 29 March and 17 May, 2003.
3. Summary of Respondent's Case
3.1 The respondent states that what occurred between the complainant and the bus driver on 17 May 2003 was, on foot of an earlier issue arising between the driver and the complainant on 29 March 2003, a question of the driver pursuing a personal grievance with the complainant for which the respondent was not liable. The incident does not therefore constitute discrimination within the meaning of the Equal Status Acts. Notwithstanding this the respondent states that it took steps to prevent the driver from discriminating and the question of vicarious liability under Section 42 of the Equal Status Act 2000does not therefore arise.
4 Summary of Complainant's Evidence
Mr. King stated that;-
Ÿ On 29 March 2003 both he and his wife went to their local bus stop to take a bus into the city centre. As Mr. King approached the door of the bus in his wheelchair the driver said that he already had a buggy on board and that Mr. King would have to wait for the next bus. The driver refused to lower the wheelchair ramp.
Ÿ The complainant's wife, who had already boarded the bus, approached the people with the buggy and asked if they would fold the buggy to allow the complainant to avail of the space designated for wheelchair use. They obliged.
Ÿ The driver then lowered the wheelchair ramp for the complainant to board the bus. As the complainant was boarding the bus he realised that the ramp was not fully deployed and his wheelchair began to tip over backwards. The driver said "your wife is no use to you now is she".
Ÿ An argument ensued and there was an exchange of words between the complainant and the driver in the course of which the complainant swore at the driver. The driver got out of his cab and followed the complainant down the bus stating "I will report you" and "people like you should have more respect for other people". The driver subsequently radioed the controller and loudly stated that he, the driver, had been the subject of an incident on the bus. He was advised by the controller to pull into a (named) Garda station and report the matter. The complainant and his wife found the actions of the driver frightening and intimidating.
Ÿ The complainant and his wife subsequently submitted a written complaint to the respondent about the incident and were assured that appropriate action would be taken in relation to the driver's behaviour. The complainant and his wife received a written apology from the company in relation to the driver's behaviour.
Ÿ On 17 May 2003 the complainant and his wife approached the same bus stop to board a bus. The driver shouted at them saying " Do you remember me, I hope you have learned your lesson after your behaviour the last time and how to say please and thank you. If I ever hear that language again I will take you to (named) Garda Station. I am not your minder".
Ÿ As the complainant is blind and could not see the driver his wife explained that it was the same driver whom they had encountered on 29 March 2003.
Ÿ As neither the complainant nor his wife wished to travel with the driver in light of their experiences with him and they moved away from the bus. The driver then deployed the ramp and then left his seat and walked up and down the bus loudly relating the previous incident to the passengers on board. As the complainant's neighbours were on the bus he found this extremely embarrassing.
Ÿ The complainant contacted the controller about the incident.
While the driver did not physically bar the complainant's entry to the bus his behaviour was so aggressive, intimidating and insulting he prevented the complainant from travelling on the bus.
The complainant subsequently encountered the driver on a third occasion,
several months after the second incident, but had experienced no difficulties on that occasion.
The complainant felt that the driver's behaviour constituted discrimination, victimisation and harassment on the grounds of disability.
5 Prima Facie Case
5.1 Section 38A(1) of the Equal Status Act 2000 (as amended by the Equality Act 2004) states that
"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".1
Section 38A(2) states that
"This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person".
6 Prima Facie Case - Complainant
Discrimination
The complainant was told, in contravention of the respondent's own policy, on 29 March 2003 that he could not board a bus because the space designated for wheelchairs was occupied by a child's buggy.
On 17 May 2003 the driver alluded to the earlier encounter and also stated to the complainant "I am not your minder".
I am satisfied that an inference of discrimination on the disability ground arises as (i) the issue as to whether the complainant could or could not board the bus in March 2003 is directly related to the fact that he is a wheelchair user and (ii) the phrase "I am not your minder" which the driver used on 17 May 2003 appears to refer to the complainant's disability.
Harassment
Words were exchanged between the driver and the complainant on 29 March 2003 and the complainant was followed down the bus by the driver, again in contravention of the respondent's own policy that drivers are not to leave the cab of the bus for any reason.
On 17 May 2003 the driver again left his cab to loudly inform all of the passengers on board about the earlier incident from his perspective. As the earlier incident in March 2003 arose specifically because the complainant is a wheelchair user there is a direct link between the two incidents. I am satisfied that an inference of harassment arises in relation to the driver's actions in (i) in March 2003 following the complainant and verbally abusing him on foot of the complainant boarding the bus and occupying the allocated space and (ii) relating the earlier incident loudly to all passengers on board the bus on 17 May 2003.
Victimisation
The complainant has provided no evidence to establish how he comes within the terms of Section 3(2)(j) , subsections (i) to (v). It appears that the driver was unaware of any complaint lodged against him by the complainant and was not therefore reacting to the complainant's lawful opposition to his behaviour in March 2003. 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.
6.2 Respondent's Rebuttal
The legal representative for the respondent stated that
It is clear from the complainant's own statement that he was not barred from travelling on the bus on 17 May 2003.
It is clear that the driver used his position as a driver to pursue a personal grievance with the complainant arising out of a previous incident, but that his behaviour towards the complainant was grounded in that personal grievance and was not connected with Mr. King's disability. It is clear that the behaviour of the bus driver on the date of the alleged incident did not amount to discrimination as defined in Section 3 of the Equal Status Acts 2000-2004.
In relation to harassment the respondent would submit that the words spoken by its employee to the complainant were not based on any discriminatory grounds, i.e. were not based on the complainant's disability, but on personal differences which existed between the complainant and the respondent's employee.
In any event and notwithstanding the above, Section 5 subsection (3) of the Equal Status Act states that "it shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practical to prevent ...harassment ... of the person referred to in subsection (2)".
Section 42 (3) of the Act states "in proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing in the course of his or her employment acts of that description.
If the behaviour of the driver amounted to discrimination (which is denied) the company will point out that the driver, like all drivers, was trained in how to deal with people with disabilities and was so trained before he started as part of an intensive training course, and the driver would also have attended a customer care course. A major part of this course is dealing with wheelchair accessible buses.
The respondent was not notified within the statutory period allowed under the Equal Status Act of the allegation of discrimination of 29 March 2003 and that allegation does not fall for consideration by the Tribunal.
Ÿ The standard policy with regard to buggies on board a bus is that, when a wheelchair user is boarding the bus, the passengers with the buggy will be asked to fold it so that the wheelchair user has access to the designated space on the bus. If the passengers with the buggy are asked to fold it and they refuse they should be asked to leave the bus.
Following the initial complaint in March 2003 to the company from the complainant the respondent had begun an investigation into the matter but had not completed same. The reason for this was unknown to the respondent's representative.
The driver in question had been referred for further training following the initial complaint. The precise details of the complaint were not relayed to the driver but the trainer had focussed on training relevant to access to buses for disabled drivers.
The respondent's representative, along with the company's Customer Service Trainer and the Training Development Officer, outlined the training procedures and the formal procedures for dealing with complaints about the respondent's employees and indicated that the driver had received a formal warning within one week of the receipt by the respondent of the second complaint. The warning is now on the driver's permanent record.
7 Conclusions of the Equality Officer
7.1 Time limits
I note that the respondent states that the incident of 29 March 2003 cannot be investigated by the Tribunal as the complainant did not provide statutory notification of this incident to the respondent and did not lodge a complaint with the Tribunal in relation to this first incident within the statutory timeframe for doing so. In these circumstances, if the incident arising on 29 March 2003 was an isolated incident then it could not be investigated by the Tribunal.
However, on 17 May 2003 the complainant encountered the same driver again. The latter made reference to the previous incident, and by doing so created a direct link between the two incidents. Specifically, while the driver referred to the fact that the complainant had used bad language on the first occasion, he stated "I am not your minder". I am satisfied that the latter comment was directed at the complainant as a wheelchair user and therefore directly relates to the complainant's disability.
I do not accept the respondent's claim that the later incident arose solely on foot of the complainant's bad language on the earlier date nor do I accept that this was a question of the driver pursuing a personal grievance with the complainant. The bad language in question was a direct response to the unacceptable behaviour of the bus driver in the first instance and, while it cannot be condoned, is understandable to an extent in the context of the driver's behaviour. Furthermore the complainant had no contact or communication whatsoever with the driver save in the context of trying to access the respondent's bus service.
Section 21(2)(a) of the Equal Status Acts provides that statutory notification be provided by the complainant to the respondent within two months after the prohibited conduct is alleged have occurred, or, "where more than one incident of prohibited conduct is alleged to have occurred within two months after the last such occurrence..." In this regard I am satisfied that, as the two incidents are directly linked, the incident arising on 17 May 2003 is "the last such occurrence" and the notification and complaint as made by the complainant are within the statutory time limits from the date of this last occurrence.
7.2 Discrimination
On 29 March 2003 the driver refused to allow the complainant to board the bus for reasons that were in contravention of the respondent's own policy. When the complainant eventually went to board the bus the driver made inappropriate remarks about the complainant's wife. All contact and communication with the driver stemmed from the fact that the complainant was a wheelchair user and required the driver's assistance to board the bus. In May 2003 the actions of the driver were such that any reasonable person would elect not to travel on the bus with him. The driver's behaviour was therefore the direct cause of the complainant not travelling on the bus on that occasion.
I am satisfied, on the balance of probabilities, that the actions of the driver on both occasions were discriminatory on the grounds of the complainant's disability.
Harassment
I note that the original complaint from the complainant did not include harassment. However, subsequent correspondence from the complainant referred to harassment and this was specifically addressed by the respondent. I am satisfied therefore that the respondent was on notice that the complainant regarded the actions of the driver as constituting, inter alia, harassment as defined in Section 11 of the Equal Status Acts 2000-2004.
On 29 March 2003 the driver of the bus in question left his cab, again in contravention of the respondent's own policy in this regard, and followed the complainant down the bus while verbally haranguing him. I note that the complainant swore at the driver because of the latter's actions. However, I am satisfied that the driver would not have left his cab or followed an able bodied male passenger down the bus while verbally haranguing them in this manner. In any event, the entire dialogue between the complainant and the driver arose on foot of the complainant's disability, specifically his use of a wheelchair.
On 17 May 2003 the same driver stated to the complainant that he was "not his minder". The driver then left the cab of the bus and loudly related his version of the previous incident to all of the passengers on board.
I am satisfied, on the balance of probabilities that the actions of the driver on both occasions constitute harassment in terms of Section 11 of the Equal Status Acts.
8 Decision
I find that the complainant was discriminated against and harassed by the respondent on the disability ground in terms of Section 3(1) (a) and 3(2)(g), and contrary to Section 5(1) and 11 of the Equal Status Acts 2000-2004.
9 Vicarious Liability
The respondent invokes the defences under Section 11(3) and 42(3) of the Equal Status Acts on the basis that they provided comprehensive training to the driver in question before he was allowed to operate a wheelchair accessible bus, and following the first complaint to the company from the complainant.
Having fully considered all of the evidence in this matter I am satisfied (i) that the training provided to all drivers in the first instance is of a general nature and, while it is customer service oriented, does not deal in any depth with the specific requirements of equality legislation and (ii) following the formal complaint from the complainant to the respondent company about the first incident arising, no specific measures were taken to clearly indicate to the driver that his actions were regarded as unilateral and not work related. The driver was not informed of the specific complaint against him.
I note that the company gave a full apology to the complainant for the driver's behaviour following the first incident. However, the formal investigation of the first incident by the respondent was never completed. I fail to see how the respondent can then state that the driver's actions were not in the course of his duty, as this was never properly determined.
On foot of this complaint under the Equal Status Acts the driver was given a formal warning by the respondent about his behaviour. I note that, subsequently, when the complainant met the same driver on a third occasion, the driver did not engage in the unacceptable earlier behaviour.
I am satisfied, based on the totality of the evidence that the behaviour of the driver which constituted discrimination and harassment (i) arose in the course of his employment and (ii) that the respondent is vicariously liable for the behaviour of the driver toward the complainant as the measures taken by the respondent to train the driver were not, for the reasons set out above, reasonably practicable to prevent the driver from acting in a discriminatory manner.
10 Redress
10.1 Under section 25(4) of the Equal Status Acts, 2000-2004 redress shall be ordered where a finding is in favour of the complainant in accordance with Section 27. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination; or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
10.2 In light of the specific circumstances of the instant case I hereby order that the sum of €3,000 be paid to the complainant by the respondent, for the effects of the discrimination and harassment.
This award has been mitigated somewhat by (i) the acceptance by the respondent that the driver's behaviour (while it was not accepted by the respondent to be discriminatory) was appalling and unacceptable and (ii) the full apology which was provided to the complainant by the respondent for the driver's appalling behaviour. In the absence of these two elements I would have had no hesitation in awarding the maximum amount under the Equal Status Acts to the complainant in light of the appalling and unacceptable prohibited conduct of the bus driver.
__________________________
Dolores Kavanagh
Equality Officer
7 March, 2007