THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-049
Parties
Ciaran Goulding
and
Enterprise Rent-a-Car, Ireland Ltd
File Ref: ES/2006/0113
Date of Issue: 31st July, 2009
Decision DEC-S2009-049
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 15th May 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. Goulding, that he was discriminated against by the respondent, Enterprise Rent-a-Car Ireland Ltd, 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, suffers from 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 either repaired or 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 Enterprise Rent-a-Car Ireland Ltd and asked to rent an automatic car with hand controls. He claims that he spoke with a number of (named) people in the company and that he was informed, they had no such vehicles and were unable to help him. He claims that he rang three different numbers and was passed from one representative to another, and that he left his number with a representative of the company but no one ever rang him back.
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 the same degree of difficulty. He said that he lives out in the countryside and the closest shop is 2 miles away while the nearest town is approximately 12 miles away and without the use of a car he is quite isolated. He claims that he would have picked the car up anywhere in Ireland if the respondent provided him with the service.
3.3 Mr. Goulding acknowledged that he did receive a letter from the respondent on the 18th September 2006, inviting him to contact the company, and ensuring that it would accommodate his needs. However, he claims that this was made after he had notified the respondent that he felt he was unlawfully treated and that he may seek redress under the Equal Status Acts. He said that he wrote to the respondent on the 6th September 2006 and that its reply was received too late. He said that the period that he had required the car rental was for the period of time between seeking the service and the respondent's reply. He claims that he did not need the service after that date and therefore did not contact the respondent after receiving its letter.
3.4 The complainant claims that from past experience the modification of a car to fit the hand controls is relatively quick and low cost. The complainant stated that the procedures the respondent claimed were in place to deal with persons requiring additional assistance were not in place on the 6th September 2006 or, at the very least, these procedures were not followed by the representatives of the company that he was in contact with. Accordingly, he claims that the respondent failed to provide him with a service and he was highly inconvenienced.
4. Summary of the Respondent’s Case
4.1 The respondent, Enterprise Rent-a-Car Ireland Ltd, totally refutes that it discriminated against the complainant on the disability andvictimisationgrounds. Enterprise Rent-a-Car Ireland Ltd is a multi-national company located in Ireland for a number of years. It specialises in the insurance replacement car industry, it operates from a number of locations throughout the country with a nationwide fleet of approximately 1500 cars and it also uses outsource partners to provide a service throughout the country when and where required.
4.2 The respondent claims that it receives very few of these type of requests per year (e.g. it claims it received 33 requests in a 3 year period (circa)) and accordingly, it did not have dedicated cars in its fleet that are permanently modified with hand controls fitted for rental. It claims that it had an alternative arrangement in place at the time to deal with such requests. It said that it had established a professional relationship with a (named) leading specialist in the field, which provided for such adaptations to its vehicles. It also presented as evidence a copy of an invoice from that company, dated 27 September 2006, detailing payments for a request similar to that made by the complainant.
4.3 The respondent does not dispute that Mr. Goulding was treated poorly, however it claims that this was down to poor customer service at the time and not a discriminatory action. It said that it prides itself in a 48 hours turn-around service from receiving such a request to providing a fitted modified car, where it is happy to bear the cost of making the modification to the car itself, which it claims is in the region of €680. At the hearing the company’s representatives, Ms. A, gave details of how the procedure is supposed to work once a request is received from the public. She went on to say that once the company received notification of the complaint from the complainant it wrote to him directly in an effort to meet his needs and it carried out its own internal investigation of that incident. It advised Mr. Goulding of the procedures it has in place and offered an apology for the way his enquiry was handled.
4.4 The respondent informed the Tribunal of the training procedure it currently has in place in relation to anti-discrimination and diversity issues. It claims that it is very mindful of its responsibilities under the Equal Status legislation and all staff are trained within 3 to 6 months of joining the organisation and refresher training is available every 12 months. It also provided recent documentation, since Ms. A joined the company in how it currently deals with such requests. It claims that it also had procedures in place in 2006, but no evidence was supplied to support this claim.
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 at that time. Whereas, the respondent claims that the complainant was not treated discriminatorily but instead he received a poor customer service and it has apologised for that fault.
5.3 I note from the evidence presented that the complainant did not inform the respondent that he had a disability when he contacted it 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, 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 Act 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 Having reviewed the evidence presented from the respondent, I note that all the documentation submitted relating to the procedure it has in place to provide for persons with a specialist request, and indeed the invoice relating to an actual modification of a car, appears to be dated after Mr. Goulding made his request and lodged his complaint. The evidence adduced at the hearing, which is not disputed by either party, is that the complainant failed to get any service from the respondent on the date in question having spoken to a number of representatives from the company, who would appear at the very least were unaware of company policy in relation to special treatment and/or facilities available at that time.
5.6 Section 4 of the Equal Status Acts requires all service providers to do all that is reasonable to provide facilities for the disabled in order to allow them 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 on the 6th September 2006. I am not disputing that the respondent currently has a procedure in place to deal with requests from people with disabilities who may request special treatment or facilities. However, I am not convinced from the evidence presented that the same procedure was in place on the 6th 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 accordingly.
5.7 As stated 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. The respondents claim that the lack of information provided to the complainant from its representatives is simply poor customer service. However, I am satisfied that for a service provider to meet its obligations under Section 4 of the Acts it must ensure that its customer service is of a standard to allow it assist disabled people access its services when it may otherwise by impossible or unduly difficult. I am convinced that shoddy customer service in such cases can lead to the customer failing to access the service. 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 transfers properly from theory into practice. Accordingly, I find that the respondent did not adhere to its stated procedure in relation to special treatment for disabled people and as a consequence 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”)."
No evidence of any nature was provided to establish how the complainant comes 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 procedure in place to deal with requests for modifications to vehicles for disabled drivers, also the fact that it has apologised for the inconvenience and has shown that it is now aware of its obligations under the Equal Status Acts.
______________________
James Kelly
Equality Officer
The Equality Tribunal
31st July, 2009