Equal Status Acts 2000 to 2004

EQUALITY OFFICER’S DECISIONS NO:  DEC-S2008-099

Ms Frances Neill,

on behalf of her daughter Paula Neill

- V -

Joe Walsh Tours

File No. ES/2006/0008

Date of Issue  19 November 2008

Key words

Equal Status Acts 2000 to 2004 - Discrimination, Section 3(1), 3(2) – Disability ground, section 3 (2)(g) – Reasonable Accommodation, Section 4(1) – Airport – toilet facilities –wheelchair user – Section 20 – parent as complainant – travel – Lourdes - late for airport check-in – refused access to toilet – respondent unaware of problem

1.     Delegation under the relevant legislation

1.1.           On 11 January, 2006, the complainant, Ms Frances Neill, on behalf of her daughter Paula Neill, referred a claim 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 to 2004 and under the Equal Status Acts, 2000 to 2004, the Director delegated the case to me, Gary O’Doherty, 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. This delegation took place on 23 November, 2007, on which day I commenced my investigation.

1.2.           As required by Section 25(1), and as part of my investigation, I proceeded to hearing, which was held in Dublin on Wednesday, 24^th September, 2008. Both parties were in attendance at the hearing.

2.     Dispute

2.1.           The dispute concerns a complaint by Ms Neill, on behalf of her daughter Paula Neill, that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts 2000 to 2004 in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Act, 2000, and contrary to Section 5(1) of that Act, particularly in that she was not provided with reasonable accommodation in attempting to avail of the services offered to her by the respondent. She alleges that, while returning to Ireland from a trip organised by the respondent, she was not collected in time to go through security procedures at the airport as a result of which Paula was prevented from availing of bathroom facilities. She alleges that the respondent was responsible for this.

3.     Case for the Complainant

3.1.           Section 20 of the Equal Status Acts, 2000 to 2004, states that, where a complainant, as defined under Section 21(1) of the Acts, is “unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part” then “his or her parent, guardian or other person acting in place of a parent” is the complainant. Ms Paula Neill has a severe intellectual disability. She is therefore a person who is unable to pursue a claim for redress, as described in Section 20 of the Acts, in accordance with which her mother, Ms Frances Neill, is the complainant in this matter and will be referred to as such hereafter.

3.2.           The complainant travelled to Lourdes on a trip organised by the respondent, leaving Ireland on 2 September, 2005, and returning on 7 September, 2005. At the time, she had chosen the respondent over a competitor in booking the trip in question because of her awareness of its record in providing a service to people with disabilities.

3.3.           The incident in question occurred on 7 September, 2005, the day of her departure from Lourdes. She initially understood, when she received her tickets a week before departure from Dublin, that, on that day, she was to be at the airport at 7.50 a.m. for a flight at 9.50 a.m. The respondent was to collect her from her hotel to transport her to the airport. The itinerary for this collection was posted on the billboard of the hotel in which they were staying on the evening of 6 September, the day before their departure. The complainant noted that this itinerary indicated that she and her family (Mr Neill was also travelling with Ms Neill and Paula) were to be collected at 8 a.m. the next morning. She assumed this meant that the flight would depart later than 9.50 a.m., as she considered that, otherwise, there would be insufficient time to proceed through the check-in and security procedures at the airport. Neither the complainant nor Mr Neill recalled speaking with a representative of the respondent that evening in relation to this matter.

3.4.           The complainant and her family were waiting to be picked up at the hotel at 8 a.m. the next morning. The bus transferring them to the airport arrived at 8.30 and collected two more passengers before proceeding to the airport, arriving there at between 8.50 and 9.00. Having completed the check-in and security procedures, the complainant attempted to avail of bathroom facilities for Paula. She was prevented from doing so by an airport official, who waved them towards their plane, which had almost finished boarding its passengers. Ms Neill therefore proceeded onto the plane. The complainant alleges that this was the principal incident of discrimination that was carried out by the respondent. She also alleges that the failure to provide her with sufficient time to bring Paula to the toilet in advance of boarding the aircraft was an act of discrimination and a failure to provide reasonable accommodation.

3.5.           By way of background, the complainant stated that, in general, when they were at home Paula was able to indicate whether she needed to use the bathroom. However, this was not always the case outside of their home. In any event, the toilets on airplanes are not suitable for her use and so the complainant always brought Paula to the bathroom before getting on a flight. In addition, in relation to the incident in question, the complainant said that Paula became unsettled during the flight and they proceeded immediately to the toilet when they landed at Dublin airport.

3.6.           The complainant admitted that she did not speak with anyone about the need for Paula to use the toilet until they approached the airport official in question, even though there were Joe Walsh Tours representatives both on the bus and at the airport. She said that she did not do so as she did not know that they would not be able to use the toilet once they had passed through security.

3.7.           The complainant took cognisance of the submissions of the respondent with regard to its reputation regarding the service it provides to its disabled customers. However, she was disappointed that it did not appear to welcome her comments as a carer of a person with a disability. She was not aware prior to the hearing that people with disabilities were the last to be collected for bus transfers to Lourdes airport and she considered that it would be better to do the opposite and collect disabled customers sooner. She also considered that group pilgrims were given favourable treatment over individuals.

3.8.           The complainant travelled to Lourdes with the respondent on a number of occasions subsequent to the incident in question. However, she stated that she did so only because there were no other competitors who offered the hotel in which they stayed in 2005 as an option. She was not satisfied with the service provided by the respondent on any of the other trips in question. (I would add that the complainant made specific allegations in relation to her trip with the respondent in 2006, but these are outside the scope of my investigation and will therefore not be considered.)

4.     Case for the Respondent           

4.1.           The respondent did not dispute the essential facts of the complaint as outlined by the complainant. In outlining its procedure for scheduling transfer buses for its Lourdes pilgrimages, it said that, on the day in question, the schedule was operated as usual, but was held up due to traffic delays. It stated that it faced a constant dilemma in facilitating those who wished to arrive at the airport early and those who wished to arrive at the airport late. In light of this, it argued that its policy of bringing disabled customers to the airport last was designed to minimise the time they would have to spend at the airport.

4.2.           It regretted that Paula was not facilitated in availing of bathroom facilities. It said, however, that none of its representatives were allowed to pass through airport security so, once the Neill family left the check-in desk, the respondent had no control over anything that might happen to them, or any issues they might have, until they arrived at Dublin airport.  The respondent carried out its own internal investigation into the matter and concluded that, had any of its representatives been informed of Paula’s need to use a toilet at a time when the respondent had control over same, that request would have been facilitated.

4.3.           It stated that approximately 15-20% of its clients for Lourdes were disabled and pointed to the fact that the company had, since its inception in 1961, expressed the need to take care of the disabled. It said that it had done so to such an extent that the present complaint was the first one that had been taken against it. It went on to outline a number of policies it had in place to assist its disabled clients, from providing special transport to ensuring people suffering from dietary illnesses were provided with the appropriate nutrition at the relevant accommodation. It stated that it was continuously praised for the caring way in which it looked after its clients. It outlined its recruitment and training process and the high standard of customer service provided by its representatives in Lourdes. It noted that the complainant availed of its services again in 2006, and later, though it acknowledged some of the difficulties experienced by the complainant in her later trips. Finally, it denied categorically that people travelling on their own were treated differently to people travelling in groups.

5.     Conclusions of the Equality Officer

5.1.           Section 38(A) 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/her.  In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant.  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. 

5.2.           As the relevant ground in the present complaint is the disability ground, there are two aspects to the complainant’s case which I must consider. Firstly, whether the complainant has been discriminated against because of her disability, in this case as defined by Section 3(1)(a) and 3(2)(g) of the Acts and within the meaning of Section 5(1) of the Acts. Secondly, I must look, in accordance with Section 4(1), at whether the respondent did “all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities”, and whether “ifwithout such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.” If necessary, I must then consider Section 4(2) and whether the respondent has not failed to provide reasonable accommodation if to do so would “give rise to a cost, other than a nominal cost”. 

5.3.           The complainant admitted that the respondent had no control over her being unable to avail of toilet facilities between the time she passed the security procedures at Lourdes airport and the time she arrived at Dublin airport. However, she submitted that it was not enough for the respondent to say that if she had asked it for time to use the toilet in advance of her passing through the security procedures at the airport, she would have been facilitated. She argued that she should not be required to ask and the respondent should have provided time for her to avail of toilet facilities in any event. In failing to do so, she contended that it had failed to provide her with reasonable accommodation.

5.4.           There is little doubt that there was a distinct deficit of time available to the complainant on arrival at the airport. While I can understand the complainant’s frustration and anger at this, I consider that this does not in itself mean that the respondent did not provide the complainant with reasonable accommodation, nor was she discriminated against. It is clear that all the customers on the transfer bus were equally discommoded by its late arrival at the airport, irrespective of whether they were disabled or not. The complainant argued that the respondents admission that it picked disabled customers up later rather than earlier, indicated that she was being discriminated against. However, as all customers on the transfer bus arrived at the airport at the same time, I do not consider that the decision of the respondent to collect them later than the others was less favourable. It was therefore not discriminatory.

5.5.           It could be argued that the complainant might have acted differently if she had known of this policy, and that there would be a deficit of time available to them on arrival at the airport (for example, she might have brought Paula to the toilet just before they got on the transfer bus). However, it is equally the case that the respondent might have acted differently if it had known of the complainant’s requirements to use toilet facilities. This is the essential point: the respondent was not aware that the complainant needed to avail of toilet facilities and it is not reasonable, in all the circumstance of this case, to expect the respondent to fix a problem that it didn’t know existed. It may well be that the respondent would have facilitated her, as it claimed it would have, if it knew of the problem, and I have no reason to doubt its submission in this regard.

5.6.           It is clear, and indeed it was accepted by the complainant, that the respondent had no control over the refusal by the airport official involved to allow the complainant access to toilet facilities at the airport.   I consider that the respondent in this case cannot be held responsible for an action over which it had no control, particularly as it was not aware that any problem existed to begin with.

5.7.           I also note that the complainant alleged that the respondent provided preferential treatment to group pilgrims over her, an allegation the respondent denied. However, the complainant did not offer any evidence that there was discriminatory treatment, within the meaning of the Equal Status Acts, in relation to this allegation.

5.8.           The respondent, therefore, did not fail to provide reasonable accommodation to the complainant in relation to the refusal of an airport official to allow access to toilet facilities. Nor did it discriminate by leaving a dearth of time to the complainant to check in at the airport to such an extent that she was unable to avail of toilet facilities prior to passing through security procedures. Equally, the respondent did not discriminate on the disability ground in relation to this complaint.

6.     Decision

6.1.           In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision. 

6.2.           I find that, further to Section 38A of the Equal Status Acts, 2000 to 2004, the complainant has not established facts from which it may be presumed that prohibited conduct has occurred in relation to her.

6.3.           Accordingly, I conclude the investigation and find against the complainant.

_____________

Gary O’Doherty

Equality Officer

19 November 2008