DEC-S2009-026 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000-2008

Decision DEC–S2009-026

PARTIES

Ms. Kathleen Anthony Kent

and

Iarnrod Eireann/Irish Rail

(Represented by Mr. Hugh Hannon,

Solicitor, Coras Iompair Eireann)

File Reference: ES/2007/0056

 Date of Issue: 30^th April, 2009

Keywords

Equal Status Acts 2000-2008 - 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) – Harassment, Section 11

Delegation under the Equal Status Acts, 2000-2008

This complaint was referred to the Director of the Equality Tribunal on 30^th May, 2007 under the Equal Status Acts, 2000 to 2004.  On 17^th October, 2008, 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 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 to 2008 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 24^th March, 2009.

1.            Dispute

1.1             The complainant claims 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 in not being provided with a service which is generally available to the public contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 and that she was not provided with reasonable accommodation in attempting to avail of the services that the respondent provided.  The complainant also claims that she was subjected to harassment in terms of Section 11(5) of the Equal Status Acts, 2000 to 2008.

2.            Summary of the Complainant’s Case

2.1             The complainant, Ms. Kathleen Anthony Kent, suffered a stroke a number of years ago and as a result is paralysed from the neck down and is a wheelchair user.  On 9^th February, 2007, the complainant embarked upon a journey on board an Irish Rail train, travelling from Waterford to Dublin, for the first time since she suffered her stroke.  The complainant had a pleasant and enjoyable experience on this journey and both she and her carer found the respondent’s staff to be very helpful and most obliging.  During the course of the return trip from Dublin to Waterford a group of approx. 8 drunk and rowdy youths boarded the train at Kilkenny station and sat in the carriage in which the complainant and her carer were seated.  The complainant stated that these youths continued to consume alcohol on the train despite being instructed by an Irish Rail official that the consumption of alcohol was prohibited.  The only other passengers seated in this carriage were a lady accompanying a child, both of whom subsequently moved to another carriage as a result of the youths’ anti-social conduct.  The complainant stated that she could not move to another carriage as there wasn’t any other carriage on the train which was adapted to accommodate a wheelchair user.

2.2             The complainant stated that the youths were smoking, using foul language and also appeared to be engaging in the consumption of narcotics and they were confronted by another Irish Rail official at Thomastown station and informed that smoking and the consumption of alcohol was prohibited on board the train.  The Gardai were awaiting the train at Waterford station and they confronted the group of youths upon arrival at the station.  The complainant stated that the experience was extremely frightening and upsetting for both her and her carer and she stated that she felt very vulnerable throughout the course of the return journey from Dublin to Waterford.  The complainant claims that the respondent’s response to the situation was inadequate and she submitted that the group of youths should have been moved to another carriage in order to protect her from the effects of their inappropriate behaviour.  The complainant claims that she was subjected to discrimination and harassment on the grounds of her disability in terms of the frightening experience that she was forced to endure during the course of this journey.             

3.            Summary of the Respondent’s Case

3.1             The respondent accepts that a group of youths engaged in anti-social behaviour on board the Dublin/Waterford train on which the complainant was a passenger on 9^th February, 2007; however the respondent totally denies that it discriminated against the complainant and claims that it took all reasonable steps to prevent the nuisance continuing on the particular occasion.  The respondent stated that the group of youths were met by a Ticket Checker as he was undertaking a ticket inspection whilst on board the train and were warned about their behaviour when it became obvious that they were drinking and smoking and causing a nuisance on board the train.  After the train had departed Thomastown station, a Train Guard advised these passengers that unless they desisted from their behaviour he would arrange to have the Gardai meet the train at Waterford station.  Unfortunately, this group of passengers were not prepared to behave in an appropriate manner and the Train Guard used his mobile telephone to contact the Gardai and Station Inspector in Waterford.  A member of the Gardai met the train upon arrival at Waterford station and escorted the members of the group off the station at Waterford and he was provided with details of their unacceptable behaviour whilst on board the train.  The respondent’s Inspector also advised the individuals concerned that they would not be permitted to travel back on the train following their behaviour on their outward journey.  

3.2             The respondent stated that neither the complainant nor her carer requested to be moved to another carriage on the night in question; however, the respondent confirmed it would not have been possible to take this action, in any event, as the complainant was occupying the only carriage on the train that was adapted to accommodate a wheelchair user.  The respondent submitted that its staff took all reasonable measures available to deal with the incident on the date in question and it denies that the complainant was subjected to discrimination or harassment on the grounds of her disability.

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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. 

Discriminatory Treatment

4.2             In the present case, the complainant is a wheelchair user and is paralysed from the neck down 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.  The complainant has claimed that she was discriminated against by the respondent on the grounds of her disability as a result of the frightening and intimidating experience which she had to endure during the course of this journey.  The respondent denies that it discriminated against the complainant on the grounds of her disability and it claims that she was not treated any less favourably than any other passenger on the date in question.  The respondent submitted that the experience to which the complainant and her carer were subjected would have been equally as frightening for a person who was not disabled or differently disabled than the complainant. 

4.3             In considering this issue, I note the complainant’s evidence that there was also two other non-disabled people seated in this carriage when the group of youths boarded the train and began to engage in inappropriate behaviour (albeit it was the complainant’s evidence that these passengers subsequently moved to another carriage because of the group’s behaviour).  I am satisfied that these other passengers were also subjected to the same treatment as the complainant on the date in question.  In the circumstances, I am satisfied that the complainant was not subjected to less favourable treatment on the grounds of her disability as it was clearly the case that all of the passengers situated in this carriage, including those without a disability, were exposed to the same experience that the complainant had to endure on the night in question.  Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.

Reasonable Accommodation

4.4             In the case of disability in considering whether discrimination occurred, consideration must be also 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 …”.

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.  In the present case, it was not disputed that the complainant was situated in a carriage on board the train that had been specially adapted to cater for the needs of a wheelchair user.  I am satisfied that this measure, in itself, amounts to the provision of reasonable accommodation within the meaning of the Acts on the basis that special facilities were made available to the complainant to facilitate her in availing of transportation on board the respondent’s train service.

4.5             I also note that the complainant stated she felt trapped on board this carriage for the duration of the journey as she did not have the option of moving to a different carriage on the train when the group of youths started to behave inappropriately.  It was accepted by the respondent that the complainant was situated in the only carriage adapted for a wheelchair user and that it would not have been possible for her to move to another carriage on the date in question.  The complainant claims that the respondent’s response to the situation was inadequate and she submitted that the respondent has a duty to protect passengers with a disability from being subjected to this type of behaviour on board its train services.  I must therefore consider whether the respondent could have provided any further special measures or facilities to the complainant, as a person with a disability, on the date in question in terms of its obligation under section 4 of the Acts given that it was not possible for her to be accommodated in a different carriage to that in which the group of misbehaving youths were situated.  In considering this issue, I note that neither the complainant nor her carer reported the matter to the respondent’s staff whilst on board the train and the complainant stated that she did not request to be accommodated in a different carriage as she was aware that she was occupying the only carriage that was adapted for a wheelchair user.  However, notwithstanding the foregoing, I am satisfied that the Ticket Inspector would have been aware of the complainant’s presence in this carriage upon carrying out his ticket inspection duties and also that he would have been aware that it was not possible for her to move to another carriage.  

4.6             In considering whether the action taken by the respondent on the date in question was sufficient to discharge its obligations under Section 4 of the Acts, I note that both the Ticket Inspector and the Security Guard, Mr. X, who were on board the train confronted the group of youths and requested them to desist from the inappropriate behaviour in which they were engaging (the respondent’s evidence was that the Security Guard confronted the youths on two separate occasions).  On the second occasion the Security Guard instructed the youths that he would contact the Gardai if they continued to misbehave and it was not disputed that the youths were ultimately escorted from the train by a member of the Gardai upon arrival in Waterford station.  It is also significant to note that the group of youths boarded the train at Kilkenny station and that the only other stop on route to the final destination in Waterford was at Thomastown station.  I note the evidence of the Security Guard, Mr. X, that he only became aware of the inappropriate behaviour after the train had departed Thomastown station and that it was therefore not possible to have the youths removed from the train prior to reaching Waterford station.  Based on the evidence presented, I cannot accept the complainant’s contention that it should have been possible for the respondent to have the group of youths removed from the train (or indeed from the carriage in which they were situated) prior to the arrival of the train at Waterford station.  I fully accept that the experience was intimidating and very unpleasant for the complainant; however, I am satisfied that the respondent’s staff took all reasonable measures to deal with the situation in light of the circumstances that presented on the date in question.  Accordingly, I find that the respondent did not fail to do all that was reasonable to accommodate the needs of the complainant, as a person with a disability, in terms of its obligations under Section 4(1) of the Equal Status Acts, 2000 to 2008.

5.     Harassment

5.1             The complainant also claims that she was subjected to harassment by the respondent contrary to the provisions of the Equal Status Acts, 2000 to 2008.  Harassment is defined in Section 11(5) of the Acts in the following terms:

“(a)(i)references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and being conduct which … has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

Therefore, in order to raise an inference of harassment within the meaning of the Equal Status Acts, 2000 to 2008 it is necessary that the unwanted conduct be related to one of the discriminatory grounds i.e. the disability ground in the present case.  In considering this issue, I note that it was accepted by both parties that the complainant and her carer were situated in the same carriage as a group of youths who were engaging in inappropriate behaviour whilst on a train journey from Dublin to Waterford on the date in question.  However, I also note that the complaint has not adduced any evidence to suggest that this inappropriate behaviour was directed personally against her on the grounds of her disability or that she was in any way singled out by the group of youths on the basis of her disability.  I fully accept the complainant’s evidence that she felt intimidated and vulnerable because of this inappropriate behaviour and that as a result she had to endure a very unpleasant experience after the group of youths had boarded the train.  However, I am of the view that the experience and exposure to the inappropriate behaviour to which the complainant was subjected in the present case would have been unpleasant and intimidating to any passenger who might have travelled on the train regardless of whether or not they had a disability.   Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts, 2000 to 2008.

6.            Decision

6.1             In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, 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), 3(2)(g) and 4(1) of the Equal Status Acts, 2000 to 2008.  I also find that find that the complainant has failed to establish a prima facie case of harassment contrary to Section 11(5) of the Equal Status Acts, 2000 to 2008.  Accordingly, I find in favour of the respondent in this case.

Enda Murphy

Equality Officer

30^th April, 2009