THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 to 2008

Decision No. DEC –  S2009- 0025

PARTIES

A Complainant

(represented by Peter O’Brien, B.L.)

-v-

A Taxi Driver

File Reference: ES/2007/0015

Date of Issue:  27 April 2009

Key words

Equal Status Acts 2000-2004 - Section 3(2)(g), disability ground – refusal to allow guide dog in taxi – blind – guide dog – airport – collect party from wedding – DAA official – taxi rank – taxi regulator – Taxi Regulations re guide dogs – failure to provide reasonable accommodation – discrimination – reasonable accommodation 

1.     Delegation under the relevant legislation

1.1.     On 1^st February, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts, 2000 to 2008, 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 to 2008. This delegation took place on 17^th October, 2008, on which day I commenced my investigation.

1.2.     As required by Section 25(1) of the Equal Status Acts, 2000 to 2008, and as part of my investigation, I held an oral hearing of the complaint in Dublin on Tuesday, 24^th February, 2009. Both parties were in attendance at the hearing.

2.     Dispute

2.1.     The dispute concerns a complaint by the complainant 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 Acts, 2000 to 2004, and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2004, in that the respondent discriminated against her by refusing to allow her into his taxi because she was accompanied by a guide dog.

3.     Case for the Complainant

Evidence of Complainant

3.1.     The complainant is totally blind. She alleges that, at 9.45 p.m. on 5 August, 2006, the respondent refused to take her in his taxi because she was accompanied by a guide dog. She stated that she had arrived that evening into Dublin airport on a flight from Manchester along with two companions, Mr A and Mr B (who was present as a witness at the hearing, the complainant had not asked Mr A to attend), both of whom were also blind. Mr A was also accompanied by a guide dog while Mr B, who had a slight element of sight, carried a white stick. She said that, upon arrival at Dublin, they were met by two airport floor staff, Ms C and Ms D, who accompanied them as far as the taxi rank at the airport. Upon approaching the rank, the complainant said that Mr A stopped to have a smoke, while she and Mr B, accompanied by Ms C, walked up to the first taxi. At that point, Ms C told her there was a problem as the taxi driver of the first taxi, the respondent, was waving at them that he wouldn’t take the dog.  The complainant said that she then asked the taxi driver why he was refusing to take the guide dog, stating that he could not refuse to do so unless he had a medical card showing that he was allergic to dogs. She stated that Ms C also complained to the respondent and that the respondent’s response to these complaints was that he could not take the dog as he was collecting guests from a wedding just over an hour later.

3.2.     The complainant said that Ms C then went to the next taxi on the rank, which had seven passenger seats, to see if its driver would take them, which he agreed to do. At this point the complainant said she called to Mr A, who was standing some distance away and had therefore not witnessed any of the events outlined at par. 3.1 above. She explained what had occurred and asked him if he would share the taxi with them. The complainant said that all three then got into the seven seat taxi with both guide dogs. She said that when she then asked Ms C to get the number of the respondent’s taxi (with a view to making a complaint against him), the respondent told them that he could take either the complainant or Mr A in the taxi if they put the guide dog in the boot. The complainant responded that guide dogs were not supposed to be put in the boot, and asked if he would put his glasses in the boot. She then proceeded in the seven seat taxi to her destination along with her companions.

Evidence of Mr B

3.3.     Mr B essentially confirmed the complainant’s evidence, adding that he had also complained to the respondent when he became aware of his refusal to take the guide dog as had Mr A, once he became aware of the situation. Mr B also stated that, contrary to the respondent’s assertion, there was only one other taxi on the rank at the time of the incident in question.

General submissions

3.4.     Mr Peter O’Brien, for the complainant, submitted that additional expense had been incurred from having to take the same taxi as opposed to separate taxis as Mr A was travelling to Cork St and the other two in the group were going to Ballyfermot. He said, however, that the expense could not be considered significant overall and was more of an inconvenience.  He stated that it could not have been possible to fit three people, two dogs and luggage in the respondent’s taxi and it must therefore have been clear to the respondent that the complainant and Mr B were travelling separately from Mr A. As proof of this, he submitted that if, as the respondent alleged, Mr A intended on travelling with them, then the respondent could easily have said that there wasn’t enough room in the car instead of refusing to take the guide dog. In summary of the complainant’s case, he submitted that she had been refused service on account of her disability and her disability was the sole reason for the refusal and that the respondent should have allowed the guide dogs to accompany the complainant in the taxi and not in the boot.

4.     Case for the Respondent           

4.1.     The respondent, who is an independent taxi driver, explained that he had arranged to collect a Mr E and a Ms F from a city centre hotel at 1 p.m. on the day in question. He said that Mr E was wearing a suit and Ms F was wearing a gown, but not a bridesmaid’s outfit. He said he took them to a church for a wedding, waited for them, and then brought them back to another hotel for the wedding reception. He arranged with them to collect them that evening from the reception to bring them back to their own hotel. The respondent stated this was an unusual arrangement, but that, when he did certain jobs, he tended to get other jobs as his vehicle was a new Mercedes. In that regard, he added that, on the day following the incident in question, he was hired by Mr E and Ms F to bring them to other destinations within and outside the city. He stated that when he went to collect the couple at the wedding reception, they asked him to come back later. As they had asked him to come back at 12 midnight, he decided to proceed to the rank at the airport to fill in the time.

4.2.     The respondent refuted the evidence presented by the complainant with regard to what occurred thereafter. He said that the rank was quite full when he arrived and when he pulled his car up to be next in line to collect passengers, there was a Fiat van behind him and a silver Mercedes behind it. He saw that there were three people next in line, who, he said, were Mr A, Mr B and a female (who he thought was the complainant). However, he said he was surprised when the DAA official, who organises the allocation of passengers to vehicles at the rank, pointed to his car, as he considered that the Fiat van behind him would be better able to accommodate such a large group. He stated that it would have been normal practice in such circumstances to direct the group to the Fiat, but he believed this was not done because the DAA official on duty that night was new and, he believed, temporary. In that regard, he agreed with Mr O’Brien that it could not have been possible for him to fit three people, two dogs and luggage in his taxi. However, rather than accepting Mr O’Brien’s submission, he said that this was all the more reason why the DAA official involved should have sent the party to the Fiat as he was adamant that, from the beginning, the complainant, Mr A and Mr B intended travelling together in the same vehicle.

4.3.     Once the complainant and her companions had been directed to his taxi, the respondent said he approached her to explain that he was picking up some customers later who were going to a wedding and he wasn’t sure that he could clean his car in time to prevent the dog hairs (from the guide dog being in the car) getting over the outfits of this couple. He said that the complainant understood his difficulty and agreed with his proposal to obtain another taxi in his place. He added that neither she nor Mr B were confrontational with him at any point during the incident in question, and that, if they had been, he would immediately have let the complainant into the taxi.  

4.4.     The respondent said that a female DAA official then appeared. He did not confirm whether this official was Ms C but said that she was ‘hyper’ as she walked down to taxis that were waiting further down the rank looking for a taxi to take the group. The respondent said that, while he was trying to indicate to this person that he had already obtained a taxi for the group, two other taxi drivers had gotten out of their cars to smoke and one of them shouted to the complainant and her companions that the respondent didn’t want to take them in his Mercedes. The respondent stated that Mr A heard this comment, just as the complainant and Mr B were getting into the other taxi, and as a result of hearing it, Mr A “lost his head completely” and threatened to have the respondents licence taken off him. The respondent said he tried to calm the situation but was unable to do so. He stated that he went to the taxi driver in the silver Mercedes and asked for suggestions as to how he could “extricate from this mess”. This driver said there was a split rear set and he could accommodate the dogs in the boot, though the respondent did not think it possible to do that in his car. However, he said he did not mention this to the complainant or her companions and had no further communication with them before they left the airport.

4.5.     The respondent confirmed that the taxi regulator has strict regulations in relation to passengers with guide dogs and that he was aware of those regulations. He said that the reason why he didn’t say he did not have room for the entire party was because he wanted to tell the truth and so he approached them and explained the real reason why he preferred not to take them. The respondent said that the complainant had simply misinterpreted his motives and he denied that he would ever have a problem in taking a blind person in his taxi.

5.     Conclusions of the Equality Officer

5.1.     Section 38(A) of the Equal Status Acts, 2000 to 2004 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.  In making this decision I have taken cognisance of all the oral and written submissions made by the parties.

5.2.     It is clear from these submissions that there is an almost total conflict of evidence as to what actually occurred in the context of this complaint. I must therefore consider this conflict and extrapolate, on the balance of probabilities, what actually occurred.

5.3.     I find the evidence of the complainant and Mr B to be the more compelling evidence in this regard. I believe that they approached the taxi rank, accompanied by Ms C, and sought to obtain a taxi to take them home. I believe that the respondent told them that he could not take them in this taxi, as he was collecting a wedding party later on and he did not wish to have dog hairs in the back of his car that might get on the clothes of those customers. An argument followed between the respondent on the one hand, and the complainant and Mr B on the other. In the meantime, Ms C obtained another taxi, at which point the complainant asked Mr A to join them.  Mr A, having heard why they needed him to accompany them, then became involved in the argument with the respondent. I believe that the respondent, who said that he was aware of the taxi regulators policy, and therefore of his responsibilities towards the complainant in the context of the Equal Status Acts, realised that his attempt to circumvent those responsibilities had failed. He therefore attempted to extricate himself from the situation he was in, but only served to exacerbate it by suggesting that the guide dog could be taken in the boot of the car. I believe that the complainant then asked the question whether he (the respondent) would put his glasses in the boot, before closing the door of the taxi and proceeding on her journey along with her companions.

5.4.     In the case of a complaint being made on the disability ground, in considering whether discrimination occurred, consideration must be given to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Acts states as follows:

“(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 difficulty 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.”

5.5.     In that context, it is well established in the Tribunal[1] that, where there is an allegation of discrimination similar to the one in question, the general approach taken is as laid out in Mr. John Maughan –v- The Glimmer Man Ltd[2], where the Equality Officer reached the following conclusions;

[9.7]“In reaching my conclusions on this ground I am satisfied that if a person brought a dog, which was not a guide dog, into the respondent’s premises they would not have been served in line with the respondent’s no dogs policy. On the face of it, therefore, the complainant was not treated less favourably because he was treated the same as anyone else with a dog would have been treated. However, because of his visual impairment the complainant was not in the same circumstances as someone else with a dog who was not visually impaired. This difference is important and to quote the European Court of Justice ruling in the case of Gillespie and others v Northern Health and Social Services Boards and others (Case no. C-342/93) “discrimination involves the application of different rules to comparable situations, or the application of the same rules to different situations”. This principle is supported by the ruling in the US Supreme Court case of Jenness v Fortsom (403 US 431 (1971)) and the rulings in the Irish Supreme Court cases of O’Brien v Keogh (1972 IR 144) and de Burca v Attorney General (1976 IR 38).

…..I consider that allowing a guide dog into a pub with a visually impaired person is special treatment without which it would be impossible or unduly difficult for the visually impaired person to avail of the service.”

So, as the Equality Officer stated in Gabriel Moloney –v- Park House Hotel[3]

“[a guide dog is] not just a pet…it had a specific purpose and function, its owner was visually impaired and requires the use of the dog to find his way around…the complainant requires specific special treatment because of his disability as it would be unduly difficult for him to avail of the accommodation service otherwise.”

The respondent was clearly aware of this, and that, by refusing to take the guide dog, he was in breach of the Acts as the complainant could not travel anywhere without being accompanied by the guide dog. I do not accept his argument that he tried to arrange another taxi for her, in the first instance because I do not believe he did (Ms C arranged the other taxi), and, in the second instance, because even if he had, that does not take away from the fact that he effectively refused service to the complainant because of her disability and he was therefore, in any event, in breach of the Acts. The respondent then insulted and upset the complainant further by suggesting that the guide dog be taken in the boot of his car.

5.6.     That the respondent had to collect a couple attending a wedding later on is no justification for refusing to take a person with a disability in his vehicle. In particular in that regard, I note that the relevant couple were invited guests at the wedding and were not wearing outfits that were any more special or unusual than the majority of guests would have been wearing. I also note that, in the context of this complaint, he was collecting them from the end of the wedding reception and not before it began, by which time whether they were attending the wedding or not was irrelevant. In any event, there is nothing in this argument that allows the respondent an exemption from the provisions of the Acts.

5.7.     I find that the respondent, by refusing to allow the complainant into his taxi because she was accompanied by a guide dog, failed to provide the complainant with special treatment or facilities to accommodate the needs of a disabled person with a visual impairment contrary to Section 4(1) of the Equal Status Acts. In reaching my decision in relation to the calculation of the redress to be awarded in this case, I have taken into account the following:

-         That, in the context of this complaint, the respondent was fully aware of his obligations under the Equal Status Acts;

-         That he deliberately and blatantly breached those obligations;

-         That, far from trying to make up for or lessen the impact of this breach when he became aware that the complainant was not satisfied with his behaviour, the respondent added further insult to her humiliation by suggesting the guide dog be taken in the boot of his car.

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 established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4(1) of the Acts. The complainant has therefore established a prima facie case of discrimination by the respondent, which the respondent has failed to rebut.

6.3.     In accordance with Section 27(1)(a) of the Equal Status Acts, I order the respondent to pay to the complainant the sum of €2000 in compensation for the inconvenience caused and for the upset and humiliation experienced by the complainant.

_____________

Gary O’Doherty

Equality Officer

27 April 2009