THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-056
Parties
Ciaran Goulding
and
Johnson & Perrott Rent a Car Limited t/a Avis Rent a Car
(Represented by Mr. Frank Nyhan, Solicitor)
File Ref: ES/2006/0132
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 29th July 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. Goulding, that he was discriminated against by the respondent, Johnson & Perrott Rent a Car Limited, 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 period of time. The complainant’s insurance policy provided him with cover to get 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 Johnson & Perrott Rent-a-Car, after checking the Golden Pages, and asked to rent an automatic car with hand controls. He claims that he spoke with two (named) people in the company and that he was informed, that it had no such vehicles and were unable to help him.
3.2 Mr. Goulding maintains that the respondent’s service is generally available to the public and that he was discriminated against because of his disability, and that had he not been disabled he would have been provided with the service without any difficulty. He claims that because of the respondent he was unable to maintain his independence and quality of life. He said that he lived alone at the time and was in effect confined to his house. He claims that he had to make alternative arrangements to get around.
3.3 Mr. Goulding stated that he sent notification of his complaint to the respondent and he acknowledged that he did receive a letter from the respondent dated the 26th September 2006, a copy of which was provided as evidence. He claims that this reply highlighted the respondent’s position, in that it was aware he would require a hand control device to be fitted to the car in order for him to be in a position to rent one of its vehicles, however it still did not offer a service. The complainant referred to a further letter received from the respondent where it states “that an assessment must be made on an individual basis and each modification is particular to that persons needs”. He claims that he has a driver’s license which specifies his requirement and that he is driving his 7th modified car and no additional assessment was ever required by anybody previously.
3.4 Mr. Goulding explained that he contacted the respondent after consulting the "car rental pages of the Golden Pages" and that he was not aware of any specialist companies that provided modified cars for disabled drivers to rent at that time. He stated that he was aware of specialists that could provide for the modification of privately owned cars however, he was not aware that they were in the business of renting modified cars to disabled drivers at that time. The complainant claims that he contacted the respondent to avail of its car rental service on the 6th September 2006. He claims that it failed to provide him with that service and because of this he was inconvenienced accordingly.
4. Summary of the Respondent’s Case
4.1 The respondent, Johnson & Perrott Rent-a-Car Limited, does not dispute the fact that Mr. Goulding contacted it on the 6th September 2006 and it also accepts that it did not provide him with a modified car on that date as it claims it did not provide that particular service at that time. However, the respondent states that it does not believe it discriminated against the complainant on the grounds claimed. The respondent is a large car rental company trading under the name "Avis Rent-a-Car" franchise. It operates from around 7 to 8 sites around the country. It claims that the modification to the vehicle that Mr. Goulding required would need to be fitted by a specific skilled mechanic, which it did not have general access to. However, it did concede that it had limited access to the services of a mechanic on at least one of its sites. Accordingly, it claims that the company policy is to refer such requests for modified cars to a specialist in the field.
4.2 The respondent claims that it receives very few of this type of request per year and claims that it spoke with the representative of the company who dealt with Mr. Goulding. It claims that she said that she remembered the query but could not remember the exact particulars of their conversation. The respondent claims that it does not discriminate against people with disabilities and the company's representative should have referred Mr. Goulding to a specialist to have the request dealt with properly however, it would appear that this failed to happen. The respondent claimed that it had its own internal training programme in place where front end staff, who deal with the public, were trained by their immediate supervisors on the job. It stated that it did not have written procedures in place detailing how to deal with requests for modified cars from disabled drivers at the time. It said that it has now corrected that anomaly and it has put written procedures in place to ensure all staff are aware of company policy.
4.3 The respondent’s representatives at the hearing were not aware of the precise training module or content that was in place for its staff members in relation to issues relating to its obligations under the Equal Status Acts. However, they stated that its obligations under the Acts were highlighted as a result of Mr. Goulding’s referral of his complaint before the Equality Tribunal.
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 representatives of the company that he engaged with on that date were unaware of the procedures that the respondent maintains were in place to deal with specialist requests, such as his request, at that time. The respondent claims that the complainant was not treated in a discriminatory fashion but that the staff he dealt with failed to provide him with the correct information at that time.
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 any service from the respondent on the date in question having spoken to two representatives from the company, which would indicate at the very least their lack of knowledge of company policy to provide for special treatment and/or facilities to disabled drivers requesting modified cars.
5.6 Section 4 of the Equality Status Acts requires all 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. I am not disputing that the respondent currently has a procedure in place to deal with requests from people with disabilities that may require special treatment or facilities. However, I am not convinced from the evidence presented that the same procedures were in place in September 2006. I am however satisfied that if it was in place that it failed to operate correctly and the complainant was unable to avail of the services as a result of this failure. The evidence presented at the hearing regarding the policy the respondent claims it had in place is somewhat contradicted by its letter to the Tribunal of 24th November 2006. That letter stated that the respondent “would be prepared to provide, within reason, a modified vehicle but we would have to have adequate notice to enable the assessment to be made, and the modification to be carried out”, whereas the evidence at the hearing would suggest that the policy was to refer customers to specialists in the field, which is somewhat confusing and contradictory.
5.7 Section 4 of the Equal Status 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. On the balance of probability I am satisfied that the staff working at the front line on behalf of the respondent were also confused as to what the company policy was in relation to requests for modified cars from disabled drivers. The respondent has conceded that none of its procedures were in writing at the time and therefore, I am satisfied there was no definitive guide for staff to take reference from. I am also of the view that it is important that a company such as the respondent invests resources in ensuring that the proper information regarding its legal obligations under Section 4 of the Acts transfers to all its staff members. Accordingly, I find that the respondent did not adhere to its stated procedure in relation to special treatment for disabled people in the circumstances of the present case and, as a consequence, I find that it discriminated 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 €750 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 currently has a written procedure in place to deal with requests for modifications to vehicles for disabled drivers and has shown that it is now aware of its obligations under the Equal Status Acts.
______________________
James Kelly
Equality Officer
The Equality Tribunal
24th August, 2009