THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-054
Parties
Ciaran Goulding
and
Murray’s rent a car t/a Sixt rent a car
(Formally Europcar/Murray’s Car Rental)
(Represented by Mark Doyle of Actons Solicitors)
File Ref: ES/2006/0134
Date of Issue: 24th August, 2009
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, section 3(1)(a) - Disability ground, section 3(2)(g) – Victimisation ground, section 3(2)(j) – Reasonable accommodation, section 4 - Disposal of goods and provisions of services, section 5(1) – Car rental.
1. Delegation under the Equal Status Act 2000 to 2008
1.1 This complaint was referred to the Director of the Equality Tribunal under the Equal Status Acts. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director has delegated the complaint to me, James Kelly, 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. The hearing of the case took place on 24th June 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. Goulding, that he was discriminated against by the respondent, on the disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Acts, and contrary to sections 5(1) of the Equal Status Acts.
3. Summary of the Complainant’s Case
3.1 The complainant, Mr. Goulding, has Multiple Sclerosis and accordingly is a wheelchair user. The complainant drives a car which is modified with hand controls fitted to allow him mechanically control the foot pedals due to the limited power in his legs. In early September 2006 Mr. Goulding’s car was involved in an accident, which left him without a car for a certain period of time. The complainant’s insurance policy provided him with cover to obtain the use of a rental car for a period of up to two weeks while his own car was being replaced. On the 6th September 2006 Mr. Goulding sought to get the use of a rental car for the two week period. He claims that he rang the respondent and asked to rent an automatic car with hand controls for a period of time. He claims that he spoke with two (named) people in the company and that he was informed, it had no such vehicles and were unable to help him.
3.2 Mr. Goulding claims that the respondent’s service is generally available to the public and he was discriminated against by the respondent because of his disability and that had he not been disabled he would have been provided with the service without any difficulty. He said that he lives out in the countryside and without the use of a car he is quite isolated. He claims that he had to depend on the good nature of his friends and neighbours to help him get around.
3.3 The complainant claims that from his past experience the modification of a car to fit the hand controls is relatively quick and low cost. The complainant stated that the respondent failed to provide him with any assistance and therefore failed to provide reasonable accommodation and he was unnecessarily inconvenienced.
3.4 Mr. Goulding claims that he contacted the respondent on the 6th September 2006 notifying it of his experience in dealing with the company and outlining the fact that he felt that he was treated unlawfully and discriminated against contrary to the Equal Status Acts. He claims he never received a reply from the respondent in response to his notification.
4. Summary of the Respondent’s Case
4.1 The respondent, Murray’s rent a car t/a Sixt rent a car, does not dispute the evidence that was presented by the complainant. It accepts that Mr. Goulding telephoned it and requested a modified automatic car on the 6th September 2006 and as it did not have such a product in place at the time it was unable to assist the complainant. The respondent claims that it receives very few of these types of requests per year (e.g. it claims it received only 1 or 2 requests in a 5-7 year period approximately) and accordingly, it does not have cars in its fleet that are permanently modified with hand controls fitted for rental.
4.2 The respondent openly apologies for any inconvenience caused. It said that at the time the complainant made his inquiry, it had no structure in place to provide for disabled driver's requests for modified cars. However, it since has established a professional relationship with a leading specialist in the field to provide for such requests, if and when the need arises. They now claim that if the same request arrived today the request would be dealt with appropriately.
4.3 The respondent does not dispute that Mr. Goulding was treated unsatisfactorily and it also accepts that it did not reply to the notification form sent by Mr. Goulding on the 6th September 2006. It claims that it did not have procedures in place in September 2006 to cater for such requests. However, it does have procedures in place currently and also, it stated that it is now very mindful of its responsibilities under the Equal Status legislation. It did state that the cost of providing a car with hand controls is high – the fitting of a vehicle with hand controls was in the region of €750, and if the steering wheel is damaged during the fitting that in turn could lead to additional costs. It also claimed that the Tribunal should be mindful of the fact that the modification of a car would mean that the car would be unavailable for rental for a number of days between the initial fitting of the hand controls and then again when they are removed, which also has cost implications.
5. Conclusions of the Equality Officer
5.1 In making my decision, in this case, I have taken into account all of the evidence, written and oral, made to me by the parties to the case. The Equality Officer must first consider whether the existence of a prima facie case has been established by the complainant. Section 38(A) of the Equal Status Acts, 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. 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.
Disability Ground
5.2 It is not disputed that the complainant contacted the respondent and made a request for an automatic car fitted with hand controls on 6th September 2006. Similarly, it is not disputed that the complainant did not receive this service from the respondent on the date in question. The complainant maintains that the respondent failed to provide him, a person with a disability, with a service that is generally available to the public and accordingly discriminated against him under the disability ground. The respondent claims that it provides its services to all of the public and it does not discriminate against disabled people, however, unfortunately it did not provide the specific product the complainant required at the time. It claims it has since corrected its policy in this regard and that it now has provisions in place to cater for such requests.
5.3 I note from the evidence presented that the complainant did not inform the respondent that he had a disability when he contacted them by phone.However, I am satisfied from his request for an automatic car with fitted hand controls that that would have been more than sufficient for the respondent to adduce and identify him as a customer with a disability or, at least that, he was making a request for a service on behalf of a person with a disability and ultimately, the end user of the vehicle was a person with a disability. That said, I note that no evidence was presented to confirm that the respondent made follow on enquires to ascertain whether the complainant was disabled or not. I am satisfied that the complainant was not directly refused a service by the respondent because of his disability but rather his specific requirement for a modified car fitted with hand controls was not facilitated. I am satisfied that no evidence was presented to show that the complainant was directly discriminated by the respondent under the disability ground. Accordingly, I find that the respondent did not directly discriminate against the complainant under the disability ground.
Reasonable Accommodation
5.4 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. This means that the Acts requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate his needs as a person with a disability in terms of its failure to provide him with a service.
5.5 The evidence adduced at the hearing, which is not disputed by either party, is that the complainant failed to obtain a service from the respondent on the date in question having made a request for an automatic car adapted so that he would be able to use it. I note the company’s policy at that time was that it did not provide such a service and therefore, it was unable to facilitate the complainant in any way with special treatment and/or facilities.
5.6 Section 4 of the Equality Status Acts requires service providers to provide facilities for the disabled in order to allow that they can avail of the service provided without undue difficulty. However, Section 4 also allows that where the provision of such facilities gives rise to a cost, other than a nominal cost, to the service provider in question then the refusal or failure to provide the facilities in question is reasonable. The respondent has provided no evidence to show that any effort was made to facilitate the complainant in order to accommodate his request in September 2006. The respondent stated that it had received very few enquires of this nature and may have not been fully aware of its obligation under the legislation at the time. However, I note, it claims that it is now fully aware of its obligation under the Equal Status Acts and it has subsequently put a policy in place to refer requests for such a service to specialists in the area to ensure that similar requests in the future are met.
5.7 As noted above, Section 4 of the Acts places an onus on the service provider to do all that is reasonable to accommodate the needs of a person with a disability so that they may avail of a service. These obligations require it to consider what special treatment it can put in place and the costs involved as a consequence. The respondent has highlighted that due to the infrequency of requests for such a service, it is not commercially viable to have a car permanently altered in its fleet. It also claims that the modification of car to fit it with hand controls is expensive and it outlined the costs involved, claiming that such costs were more than a nominal cost. However, it would appear to me that no other options were considered to provide for persons with a disability requiring special treatments or facilities, such as the complainant. Options such as its current policy - in referring customers to a specialist in the market, or indeed, having the option of installing the hand controls and then seeking to recoup some or all of the costs of the modification from the customer could have been considered. I am satisfied that a company the size of the respondent should have been acutely aware of its obligations under the Equal Status Acts and rather than having no policy in place to provide assistance for people with a disability that it should have considered the alternatives that were available. Accordingly, I find that the respondent did discriminate against the complainant by its failure to provide him with reasonable accommodation at the time of making his request.
Victimisation Ground
5.8 The complainant has claimed that he was subjected to discrimination under the victimisation ground. The specific terms of that ground are set out in Section 3(2)(j) subsections (i) to (v), namely,
"(j) that one -
(i) has in good faith applied for any determination or redress provided for in Part 11 or 111,”
(ii) has attended as a witness before the Authority, the Director or a court in connection with any enquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),
and the other has not (the “victimisation ground”)."
The complainant did not adduce any evidence whatsoever from which I could conclude that he was subjected to victimisation within the terms of this section. Therefore, I am satisfied that the complainant has not established that he is covered by the victimisation ground and accordingly, I find that he has not established a prima facie case of victimisation.
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. Based on the evidence presented in this case, I find that the respondent discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4 of the Acts.
6.2 In accordance with Section 27(a) of the Equal Status Acts, I award the complainant the sum of €1,000 in compensation for the inconvenience caused and for the discrimination and frustration experienced. In reaching my decision in relation to the calculation of the redress to be awarded, I have taken into account the fact that the respondent failed to respond to the initial notification of complaint, however, I have also noted that it sincerely apologised to the complainant at the hearing and has currently put a procedure in place to deal with requests for service from disabled drivers.
______________________
James Kelly
Equality Officer
The Equality Tribunal
24th August, 2009