Equal Status Acts, 2000-2008
Equality Officer Decision
DEC-S2008- 098
Aine Wellard
-v-
Eircom(Represented by Mr. Brian Conroy, B.L. on the instructions of Mr. Niall Pelly, Arthur Cox Solicitors)
File Ref: ES/2003/0578
Date of Issue: 25th November, 2008
Keywords
Equal Status Acts, 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 to 2004
This complaint was referred to the Director of the Equality Tribunal on 16th September, 2003 under the Equal Status Acts, 2000 to 2004. On 10th June, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director 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 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 3rd October, 2008.
1. Dispute
1.1 The complainant maintains that she was discriminated against by the respondent on the grounds of her disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 in that the respondent failed to do all that was reasonable to accommodate her needs, as a person with a disability, by providing special facilities in terms of its failure to provide her with access to information that is readily available to its sighted customers through the medium of Braille.
2. Summary of the Complainant’s Case
2.1 The complainant, who is visually impaired has been a customer of the respondent’s since 1986 and she claims that the respondent has discriminated against her on the grounds of her disability as a result of its failure to provide her with access to information that is readily available to its sighted customers through the medium of Braille. The complainant claims that she has experienced difficulties in accessing information provided by the respondent since first availing of its services and it was as a result of representations she made regarding these difficulties that the respondent initially introduced Braille bills for its visually impaired customers. The complainant claims that the Braille bills which she receives from the respondent in relation to her account are not a direct transcript of the printed bill which is sent to sighted customers and therefore, these Braille bills are incomplete. The Braille bill does not contain all of the information that is included on the printed bill and the items of information that are missing include the heading, details relating to “Recurring Activity Charges”, the breakdown of broadband charges and certain inserts that are enclosed with the printed bill. The Braille bills that are provided by the respondent are also physically very large in comparison to the printed bill with the result that they are very cumbersome to read and are not very user-friendly. The complainant accepts that she can access her bill through the respondent’s website using the JAWS speech synthesiser software, however she claims that this method is not as effective as receiving the material in Braille.
2.2 The complainant also claims that she has experienced difficulties in obtaining information from the respondent in Braille format regarding its “Call Answering” service. She originally requested this information from a member of staff in the respondent’s Customer Care section on 19th May, 2003 and was informed by this person that it would not be possible to obtain this information in Braille format as the respondent did not have Braille transcription facilities. The complainant claims that this information was readily available to the respondent’s sighted customers through the front pages of its telephone directory, however as a visually impaired customer, she was obliged to actively request this information and had to endure a three week wait until she eventually received the information in Braille format on 10th June, 2003. The complainant claims the fact that the respondent elects to send this information for private transcription when it has the Braille facilities to produce the information itself suggests that the individuals operating its Braille equipment have not received the appropriate training and is further evidence of the discrimination to which the respondent’s visually impaired customers are subjected.
2.3 The complainant also requested instructions from the respondent in Braille format regarding the use of an Eircom telephone on 18th August, 2003 and having made enquiries with a member of the respondent’s staff, she was informed that these instructions would be made available to her by 28th August, 2003. However, the complainant did not receive these instructions until 12th September, 2003, some three and a half weeks after making the initial request for the instructions in Braille format. The complainant claims that the respondent’s treatment of her in relation to this matter did not constitute reasonable accommodation within the meaning of the Equal Status Acts having regard to the difficulties that she experienced in obtaining the information in Braille format.
3. Summary of the Respondent’s Case
3.1 The respondent denies that it has discriminated against the complainant on the grounds of her disability and it claims that it has implemented an extensive range of measures to facilitate her access, as a customer with a disability, to the services that it provides. The respondent acknowledges that the content of the Braille bill format provided to visually impaired customers is not identical to the typed bill provided to sighted customers. The respondent introduced Braille billing for visually impaired customers in 1994 following a seven month process involving the assistance of a Braille expert. When a new format flexible bill was introduced in 1998, the Braille bill was not migrated to the new format for a number of reasons, the most significant being the prohibitive cost of providing such transcription[1]. This results in the discrepancies between the Braille bill and the printed bill of which the complainant complains in the present case. The respondent submits that the details set out in the Braille format bill currently provided to the complainant are more than sufficient to ensure that it is not impossible or unduly difficult for a visually impaired customer to avail of its services.
3.2 The complainant contacted the respondent in April, 2002 to express her dissatisfaction with the Grade 1 Braille billing that was in operation for visually impaired customers at that juncture. Arising from this, the respondent undertook a survey of its visually impaired customers with a view to reviewing accommodations provided and in light of the responses received and at some expense, the respondent upgraded the billing system to Grade 2 Braille in July, 2002. The complainant subsequently continued to contact the respondent on a regular basis with criticisms regarding the services it provides for visually impaired customers. The respondent arranged a meeting with the complainant on 31st October, 2002 at which she was afforded the opportunity to outline her criticisms. One of the complainant’s principal allegations at that meeting was that its customer care representatives were inadequately trained to deal with concerns of the visually impaired, so in response to these criticisms, the respondent designated a contact person within the organisation and the complainant was directed to address all queries and concerns to this contact person. The respondent also claims that it has been to the forefront of industry best practice in terms of dealing with disabled customers and it has a detailed accessibility and disability policy.
3.3 The respondent submitted that its Braille transcription software is programmed only to transcribe bills and accordingly, it was decided to outsource the transcription of other matters to the National Council for the Blind in Ireland (NCBI) i.e. a body with special competence in this particular area. The respondent claims that the delays identified by the complainant regarding the provision of information in Braille format in relation to its Call Answering service and the instructions for using an Eircom telephone are relatively minor and that the complainant has not established any specific prejudice stemming from those delays. The respondent claims that it has engaged with the complainant on an ongoing basis and that its has put special measures and facilities in place in order to facilitate her access to its services and it submits that these measures constitute the provision of reasonable accommodation within the meaning of the Equal Status Acts.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred in relation to her. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision in this matter, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 In the present case, the complainant is visually impaired and I am therefore satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. I also accept that the complaint of less favourable treatment in this case arises within the meaning of Section 4 of the Acts. In the case of disability in considering whether discrimination occurred, consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
“4.—(1) For the purposes of this Act 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 …”.
Therefore, the question that I must address in the present case is whether the respondent did all that was reasonable to accommodate the needs of the complainant, as a person with a disability, by providing special treatment or facilities. This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a person with a visual impairment to access its services and that it did not provide her with special facilities to meet those needs.
Braille Bills
4.3 I will deal firstly with the complaint that has been raised regarding the Braille bills that the complainant received from the respondent. At the outset of my deliberations on this issue, I note that the respondent first introduced a Braille billing service for its visually impaired customers in 1994 following representations that had been made by the complainant regarding this issue. I am satisfied that the provision of bills in Braille format amounts to the provision of special measures by the respondent in order to facilitate the requirements of a person with a visual disability in accordance with the provisions of Section 4 of the Acts. The complainant claims that she has been subjected to discrimination on the basis that the Braille bills which she received from the respondent were not a direct transcript of the printed bill which is sent to sighted customers and that these Braille bills do not contain all of the information, including inserts that are included in the printed bill. It was not disputed by the respondent that the Braille bills which were issued to its visually impaired customers at the time of the alleged incident of discrimination in June, 2003 were not identical to the printed bill that was issued to sighted customers. The respondent claims that the discrepancies between the printed and Braille bills arose as a result of the prohibitive transcription costs when its existing billing system was changed to a new flexible bill format in 1998. The respondent claims that the details which were set out in the Braille format bill that was provided to the complainant at the time of the alleged discrimination in 2003 were more than sufficient to ensure that it was not impossible or unduly difficult for a visually impaired customer to avail of its services.
4.4 In considering this issue, I note that the respondent continued to issue bills in Braille format to its visually impaired customers after the changes to its billing system in 1998 and that the allegation of discrimination in the present case is based on the premise that the Braille bills which were issued post 1998 were not identical to the printed bill that was issued to the respondent’s sighted customers. Having regard to the evidence adduced, I am satisfied that the bill which was issued in Braille format to the complainant (and all of the respondent’s visually impaired customers) at the time of the alleged incident of discrimination in 2003 was entirely functional and that it contained all of the relevant and necessary information which was included on the printed bill, with any differences in the format of the respective bills being related primarily to their layout.
4.5 In considering this issue further, I must also decide whether the respondent could have put any further special measures and/or facilities in place when it became aware of the difficulties that the complainant was experiencing in relation to the Braille bills in order to provide reasonable accommodation to her, as a person with a disability, in terms of its obligations under Section 4 of the Acts. The question as to what constitutes ‘reasonable accommodation’ has previously been addressed in many employment equality cases and much emphasis has been placed on the failure of the employer to engage in an acceptable level of consultation of the specific needs of a person with a disability. Both the Equality Tribunal and the Labour Court have issued a considerable body of decisions requiring a high standard of consultation in such cases and I am of the view that similar standards should be applied in cases that have been referred under the Equal Status Acts, considering that the legal provisions are effectively the same. I accept that there is an obvious distinction to be made between the employment and equal status context and that one would expect the standard of “reasonable accommodation” in an employment situation to be higher than that between a service provider and a customer. However, I consider that the standard must clearly be the same for something as basic as the need to consult with the person with the disability.
4.6 In the present case, I am satisfied that the respondent actively engaged in a process of consultation with the complainant when it became aware of the difficulties that she was experiencing in terms of the information that was included in the Braille bills that she was receiving. In this regard, I note that the respondent, upon being made aware of the complainant’s dissatisfaction regarding the Braille bills, implemented a number of special measures in order to address the difficulties identified, including:
· The respondent undertook a survey of its visually impaired customers with a view to reviewing the accommodations provided with the result that its billing service was upgraded at a considerable cost to Grade 2 Braille in July, 2002.
· The respondent arranged a meeting with the complainant on 31st October, 2002 at which she was afforded the opportunity to outline her criticisms regarding the treatment of its visually impaired customers.
· Following this meeting the respondent designated a person within the organisation, who had experience in dealing with people with a disability, to act as a contact person in dealing with any further queries or complaints that the complainant may have in relation to its services.
· In the event that a visually impaired customer wishes to be given access to his or her bill in the flexible billing format, it is possible to do so via the respondent’s website using the JAWS speech synthesiser software. The complainant indicated that she uses the JAWS software and it was therefore possible for her to access her bill in the flexible bill format in this manner.
Having regard to the foregoing, I am satisfied that the aforementioned range of measures and special facilities that were put in place by the respondent in order to address the concerns that were identified by the complainant in relation to its Braille billing service amounted to the provision of reasonable accommodation to a person with a disability in terms of its obligations under Section 4 of the Acts.
The provision of information in Braille format in relation to the “Call Answering” service and instructions for using an Eircom telephone
4.7 The complainant also claims that she experienced difficulties in obtaining information from the respondent in Braille format regarding its “Call Answering” service and instructions for using an Eircom telephone. She claims that this information was readily available to the respondent’s sighted customers and that she was required, as a visually impaired customer, to actively request this information and to endure an unacceptable delay until she eventually received the information in Braille format despite the fact that the respondent had the Braille facilities to produce the information itself. In considering this issue, I note that the respondent’s Braille transcription software was programmed only to transcribe bills and therefore, it did not have the facilities to transcribe the documents into Braille that were requested by the complainant. I also note that upon receipt of the complainant’s request for the aforementioned documents in Braille format, the respondent outsourced the transcription of these documents to the National Council for the Blind in Ireland (NCBI) i.e. a body with special competence and expertise in the transcription of documents into Braille. The complainant was waiting for a period of approx. 3 weeks for this information to be furnished, however I do not consider that this was an inordinate amount of time to have to wait for the provision of this information. In the circumstances, I am satisfied that the respondent put special measures in measures in place to accommodate the needs of the complainant as a person with a visual disability once it became aware of her requirements in this regard. I find that the measures which were put in place by the respondent amounted to the provision of special facilities to accommodate the needs of the complainant as a person with a visual disability and that it constitutes the provision of reasonable accommodation within the meaning of Section 4 of the Acts.
4.8 Having regard to the foregoing, I therefore find that the respondent did not fail in its obligation under Section 4 of the Equal Status Acts to do all that was reasonable to accommodate the needs of the complainant as a person with a disability, in the circumstances of the present case, by providing special measures or facilities. Furthermore, I am of the view that the respondent was extremely proactive and facilitating, both in terms of its approach and the manner in which it dealt with the complainant, as a person with a disability, and I am satisfied that the special measures and facilities provided by the respondent in the instant case exceeded the standard of reasonable accommodation that would have been expected of a service provider in order to discharge its obligations under Section 4 of the Acts.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 4(1) and 3(2)(g) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
25th November, 2008
[1]The respondent carried out a feasibility study which established that it would cost a total of €409,860 for transcribing the flexible bill into Braille format.