DEC-S2009-015 - Full Case Report

THE EQUALITY TRIBUNAL

EQUAL STATUS ACTS 2000 - 2008

Decision DEC – S2009-015

PARTIES

Mr. Sean Thompson

(represented by Ms. Geraldine Hynes, Solicitor,

The Equality Authority)

and

Iarnrod Eireann/Irish Rail

(represented by Mr. Colm Costello. Solicitor,

Coras Iompair Eireann)

File Reference: ES/2007/0022

Date of Issue: 2^nd March, 2009

TABLE OF CONTENTS 

Equal Status Acts, 2000-2008

Equality Officer Decision DEC-S2009-015

Sean Thompson

(Represented by Ms. Geraldine Hynes, Solicitor,

The Equality Authority)

-v-

Iarnrod Eireann/Irish Rail

(Represented by Mr. Colm Costello,

Solicitor, Coras Iompair Eireann)

Case Summary

Keywords

Equal Status Acts 2000-2004 - Indirect discrimination, Section 3(1)(c) - Disability  Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)

Dispute

The complainant maintains that he was discriminated against on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008.  

Complainant’s Case

The complainant has a visual impairment and uses a Department of Social and Family Affairs Free Travel Pass on Irish Rail DART services to and from work each day.  He is required to queue for a travel ticket for each day of travel and is prohibited from acquiring a ticket in advance, for example the evening before, as other customers who do not avail of the free travel pass are allowed to do.  The complainant claims that the “same day only” restriction for the travel tickets used by the holders of Free Travel Passes constitutes discrimination under the Acts and a failure to provide reasonable accommodation to a person with a disability.

Respondent’s case

The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which he is required to acquire a travel ticket when using his Free Travel Pass.  The respondent submitted that the implementation of the requirement for the holder of Free Travel Pass to obtain a ticket on each day of travel is necessary in order to safeguard the company against fraudulent activity and the considerable costs which could arise as a result of such fraudulent activity.  

Decision

The Equality Officer found that that a prima facie case of indirect discrimination has been established by the complainant on the Disability ground in terms of sections 3(1)(c) and 3(2)(g) of the Equal Status Acts 2000 to 2008, and that the respondent has failed to rebut the allegation of discrimination.  The Equality Officer also found the respondent has discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4 of the Equal Status Acts, 2000 to 2008. 

In accordance with section 27(1)(a) of the Acts, the Equality Officer awarded the complainant the sum of €750 in compensation as redress for the inconvenience caused.  The Equality Officer also ordered, in accordance with Section 27(1)(b) of the Acts, that the respondent review its policy in terms of the requirement for the holders of Free Travel Passes to present at the ticket office on each day of travel to acquire a ticket in order to ensure that the policy is in full compliance with the terms of the Equal Status Acts, 2000 to 2008.

Equal Status Acts, 2000-2008

Equality Officer Decision DEC-S2009-015

Sean Thompson

(Represented by Ms. Geraldine Hynes, Solicitor,

The Equality Authority)

-v-

Iarnrod Eireann/Irish Rail

(Represented by Mr. Colm Costello,

Solicitor, Coras Iompair Eireann)

Keywords

Equal Status Acts, 2000-2008 - Indirect discrimination, Section 3(1)(c) - Disability  Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)

Delegation under the Equal Status Acts, 2000 to 2008

This complaint was referred to the Director of the Equality Tribunal on 20^th February, 2007 under the Equal Status Acts, 2000 to 2004.  On 11^th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, 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, 2000-2004 on which date my investigation commenced.  As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 28^th January, 2009.

1.            Dispute

1.1             The complainant claims that he was discriminated against by the respondent on the grounds of his 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 he was not provided with reasonable accommodation in attempting to avail of the services that the respondent provided. 

2.            Summary of the Complainant’s Case

2.1             The complainant has a visual impairment and uses a Department of Social and Family Affairs Free Travel Pass on Irish Rail DART services to and from work each day.  The complainant is required to queue for a travel ticket for each day of travel and is prohibited from acquiring a ticket in advance, for example the evening before, as other customers who do not avail of the Free Travel Pass are allowed to do.  The complainant is also prohibited from getting a weekly or monthly travel ticket and as a result has to leave his house earlier in order to queue to get his ticket as he is travelling at rush hour in the morning.  The complainant claims that customers who do not have a disability can obtain a ticket in advance and thereby avoid delays going to work but he is not permitted to do this.  The complainant raised this issue with the respondent on a number of occasions and was informed that because of the very high number of Free Travel Passes in circulation, the security and control of their illegal use was a significant problem for the respondent.  He was informed by the respondent that Free Travel Passes were issued by the Department of Social and Family Affairs and a formal contract had been in place for many years which required the holders of Free Travel Passes to present themselves at the booking office on the day of travel as part of this contract.  The complainant was also informed that there was a significant problem with the fraudulent use of Free Travel Passes and the practice whereby a pass holder must present himself/herself at the booking office for visual inspections safeguards against this fraudulent activity.

2.2             The complainant rejects the reasons put forward by the respondent regarding the requirement for this policy and he submitted that in order to circumvent the issue of fraudulent activity, when travel tickets issued to Free Travel Pass holders are being checked by an Inspector, the respondent could insist on both the Social Welfare Free Travel Pass ID and the travel ticket being produced.  The complainant claims that the condition placed on a customer with a Free Travel Pass to present himself/herself on the day of travel in order to get a ticket makes it unduly difficult for a person with a disability to avail of the service being provided by the respondent.  The complainant further submitted that the conditions imposed on disabled passengers in relation to ticket purchase which are the subject of this complaint militate against the active participation in the workforce by people with disabilities.   The complainant claims that the ‘same day only’ restriction for the travel tickets used by the holders of Free Travel Passes constitutes discrimination under the Acts and failure to provide reasonable accommodation to a person with a disability.

3.            Summary of the Respondent’s Case

3.1             The respondent denies that it has discriminated against the complainant on the grounds of his disability or that it has failed to provide him with reasonable accommodation in terms of the manner in which he is required to acquire a travel ticket when using his Free Travel Pass.  The respondent stated that the Department of Social and Family Affairs operates the Free Travel Pass Scheme and under the terms of the Scheme it is obliged to honour the passes that are produced for travel on the train services which it operates, including travel on DART services.  There are a number of different categories of persons that qualify to avail of this Scheme with the two main categories being persons who are over the age of 66 years and persons with a disability who meet the qualifying criteria.  The free travel concession passes are issued and controlled by the Department of Social and Family Affairs and the terms of the Free Travel Pass Scheme encompasses the requirement for customers in possession of Free Travel Passes to present themselves to the booking clerk on the day of travel and produce their free travel pass for inspection in advance of being issued with the relevant rail ticket.  The holder of the Free Travel Pass is issued with a return ticket upon presentation of the pass at the ticket office which can only be used for travel on the date of issue.   

3.2             The respondent stated that the restriction on travel tickets for persons under the Free Travel Pass Scheme also applies to people other than those with disabilities i.e. those who are aged 66 years and over.  It submitted that these restrictions do not make it unduly difficult or impossible for the complainant to avail of the rail services that are being provided by the respondent.  The respondent submitted that there is a very high number of these Free Travel Passes in circulation (circa. 600,000) and it has experienced considerable difficulties with the fraudulent use of these passes in the past.  It submitted that the implementation of this policy is necessary in order to safeguard the company against such fraudulent activity and the considerable costs which could arise as a result of such fraudulent activity.  The respondent claimed that if the company were to lose this safeguard then it would be at risk of exposing itself to even more serious fare evasion.   

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 he can rely in asserting that prohibited conduct has occurred in relation to him.  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. 

4.2             In the present case, the complainant is visually impaired and I am therefore satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts.  I note that the facts in this case are largely undisputed and it is accepted by both parties that the complainant, as the holder of a Free Travel Pass, is obliged to comply with the requirement to present at the booking office on each day of travel in order to acquire his ticket.  The issue that is in dispute between the parties is whether or not this requirement on the complainant, as the holder of a Free Travel Pass, and the restrictions that are placed on him in terms of the manner in which he is obliged to acquire a travel ticket amount to discrimination on the ground of his disability and/or a failure by the respondent to accommodate his needs as a person with a disability within the meaning of Section 4 of the Acts. 

Discriminatory Treatment

4.3             In considering this issue, I note that the Free Travel Pass Scheme is operated and administered by the Department of Social and Family Affairs and the Scheme is available to a number of different categories of persons including persons over the age of 66 years and persons with a disability who meet the qualifying criteria.  I am satisfied that the reason the complainant qualified for a Free Travel Pass in the first instance was on the grounds of his disability and therefore, his entitlement to travel on the respondent’s rail services arose as a result of this disability.  Under the terms of the Scheme the respondent is obliged to afford access to its DART and rail services to the holder of a Free Travel Pass and it is duly remunerated by the Department of Social and Family Affairs for travel that is undertaken by the holders of the pass.  The respondent receives a set amount from the Department for each Free Travel Pass issued irrespective of the amount of travel undertaken by the individual pass holder.  It was not disputed between the parties that there are certain requirements placed upon the holder of a Free Travel Pass in terms of the manner in which he/she is required to procure a ticket in order to avail of these services.  For example, a non-pass holder who is purchasing a ticket has the option of acquiring a weekly or monthly ticket whereas the holder of a Free Travel Pass is prohibited (under the terms of the Free Travel Pass Scheme) from availing of such options as they must present themselves at the booking office on each day of travel in order to acquire a ticket.  It is therefore apparent that the complainant, as the holder of a Free Travel Pass, is being denied access to the full range of ticket travel options which are available to a person who purchases a ticket from the respondent in the “normal manner”.  

4.4             I am of the view that the aforementioned requirements which are placed upon the complainant as the holder of a Free Travel Pass and a person with a disability, put him (and other persons within this category) at a disadvantage compared to other customers of the respondent without a disability who do no avail of the Scheme.  Section 3(1)(c) of the Equal Status Acts makes provision for indirect discrimination in the following terms:

“where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

Accordingly, I find that the implementation of the aforementioned requirement upon the complainant, as the holder of a Free Travel Pass, is sufficient to raise an inference of indirect discrimination (rather than direct discrimination) on the disability ground within the meaning of Section 3(1)(c) of the Acts.  In order to successfully rebut an inference of indirect discrimination it is necessary for the respondent to demonstrate that the provision is objectively justified by a legitimate aim and that the means of achieving that aim are appropriate and necessary.  I note the respondent has claimed that the restrictions which are imposed upon the holders of Free Travel Passes in terms of the manner in which they are obliged to acquire a travel ticket are required under the terms of the Free Travel Pass Scheme and in order to safeguard against the considerable costs which could arise as a result of the fraudulent use of these passes.  The complainant has submitted that the requirements which are placed upon him by the respondent, as the holder of a Free Travel Pass, are neither necessary nor effective to achieve the aims of counteracting fraudulent use of the Passes. 

4.5             In considering this issue, I note that the complainant (both in evidence at the hearing and during the course of correspondence with the respondent) has outlined a number of alternative measures which he contends the respondent could implement, other than the requirement that the holder of a Free Travel Pass obtain a ticket on each day of travel, in order to circumvent the fraudulent use of Free Travel Passes, namely:

·      When the travel tickets that are issued to the Free Travel Pass holders are being checked by an Inspector, the respondent could insist on both the Free Travel Pass and the ticket being produced.  Purple tickets are issued to the customers with Free Travel Passes and it would therefore be easy to implement this procedure.

·      The respondent could insist that the Social Welfare Free Travel Pass ID be produced at the same time as the ticket to Inspectors at the gates upon boarding the train.

I am satisfied that the respondent has failed to adduce sufficient evidence to refute the complainant’s contention that the aforementioned measures could be used as an alternative to the present requirements that are placed upon the holders of a Free Travel Pass in order to achieve the aim of counteracting fraudulent activity.  I also note that the respondent has not provided any evidence whatsoever in terms of the levels of the fraudulent use involving Free Travel Passes and/or the financial repercussions that accrue to the company as a result of this activity. 

4.6             I fully accept that the respondent has encountered difficulties in relation to the fraudulent use of Free Travel Passes and that it is entitled to put appropriate measures in place in order to safeguard the company from such activity.  However, having regard to the evidence adduced, I cannot accept that the imposition of the aforementioned requirements by the respondent which put a specific section of its customer base i.e. in the present case persons with a disability (and who are holders of a Free Travel Pass) at a disadvantage compared to other customers are appropriate and necessary in order to achieve the aim of counteracting fraudulent activity.  I am satisfied that the imposition of the requirement upon the complainant (and other persons within this category), as the holders of a Free Travel Pass, to present at the ticket office on each day of travel in order to acquire a ticket, in circumstances where other customers without a disability who do not avail of the Free Travel Scheme are not required to do so, amounts to indirect discrimination within the meaning of the Equal Status Acts.  In the circumstances, I find that the complainant has established a prima facie case of indirect discrimination on the disability ground and that the respondent has failed to rebut the inference of discrimination. 

Reasonable Accommodation

4.7             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 facilitating his access to avail of its DART service.  Having regard to the wording of Section 4(1) of the Act, discrimination occurs in circumstances whereby the unreasonable refusal or failure of the respondent to provide special measures or facilities makes it “impossible or unduly difficult” for the person to avail of the services on offer.  I have noted the complainant’s evidence that the restrictions imposed upon him, as the holder of a Free Travel Pass, result in a considerable amount of hardship in terms of the travelling time that it takes him to get to and from work and that this is exacerbated by the nature of his visual disability.  I am satisfied that these restrictions result in a significant degree of inconvenience and difficulty to him as a regular commuter on the respondent’s DART services, and as a person with a disability, who is dependent on this mode of public transport in order to travel to and from work.  In the circumstances, I am of the view that the restrictions imposed upon the complainant make it excessively and “unduly” difficult on him to avail of the respondent’s DART service. 

4.8             I note that the complainant raised these difficulties with the respondent on a number of occasions prior to the referral of this complaint and consequently, I am satisfied that the respondent was fully aware of the difficulties the complainant was experiencing in terms of his access to the DART services.  I have noted the respondent’s evidence that it has on occasions made exceptions to the requirement for the holder of a Free Travel Pass to present at the ticket office on the day of travel in order to acquire a ticket; and by way of example the respondent referred to a situation whereby a senior citizen, who is the holder of a Free Travel Pass, would be permitted to acquire a ticket if he/she presented at the ticket booth the night before the planned journey.  The respondent also accepted that there was a certain amount of discretion available to the staff issuing tickets in terms of the operation of this policy.  Having regard to the discretion that was available to the respondent, I am satisfied that it could have exercised a degree of flexibility in order to facilitate the complainant in terms of the implementation of the policy; however, based on the evidence presented in this case, the respondent failed to put any such measures in place in order to facilitate him.  

4.9             In the circumstances, I am satisfied that the respondent failed to do all that was reasonable to accommodate the needs of the complainant as a person with a disability in order to avail of its DART services.  Section 4 of the Acts also provides that where the provision of special treatment or 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.  Having regard to the foregoing, I am satisfied that the issue of nominal cost in terms of the provision of the special facilities which the complainant required was not a factor in this case as these facilities (as referred to above) were already available to the respondent at the time that he raised these difficulties in 2006.  In the circumstances, I find that the respondent has failed in its obligation to provide special facilities or measures for the complainant in accordance with the provisions of Section 4 of the Acts.

5.     Vicarious Liability

5.1             The respondent has claimed that the Free Travel Pass Scheme is controlled by the Department of Social and Family Affairs and it submitted that a formal contract has been in place for many years between it and the Department which requires the holder of a Free Travel Pass to obtain a ticket on each day of travel.  The respondent has therefore submitted that it was obliged to implement this requirement in order to comply with the terms of this contract.  In considering whether the named respondent in these proceedings i.e. Irish Rail can be held liable for discriminating against the complainant as a result of the implementation of the terms of this scheme, I have taken cognisance of the provisions of Section 42(2) of the Equal Status Acts which provides:

“Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act as donealso(my emphasis) by that other person”

Therefore, an issue arises as to whether the named respondent in the present case i.e. Irish Rail was acting as an agent for the Department of Social & Family Affairs for the purposes of Section 42(2) of the Acts.   I note that under the terms of the Free Travel Scheme the respondent is obliged to afford access to its rail and DART services to the holder of a Free Travel Pass and it is duly remunerated by the Department of Social and Family Affairs for travel that is undertaken by the holders of the pass.  I am therefore satisfied that Irish Rail was acting in the capacity as an agent of the Department of Social and Family Affairs within the meaning of Section 42(2) of the Acts.  I am of the view that the inclusion of the word “also” in this section of the Acts is significant in terms of determining whether any liability accrues on the part of Irish Rail in the present case.  I am satisfied that Irish Rail was providing a service to the holders of Free Travel Passes within the meaning of Section 2(1) of the Equal Status Acts (in accordance with the terms of its contract with the respondent) and in doing so it was implementing the discriminatory requirement which was imposed upon the complainant in the present case i.e. the requirement to obtain a ticket on each day of travel.  I therefore find that Irish Rail, being the service provider which implements the discriminatory requirement, is vicariously liable in accordance with the provisions of Section 42(2) of the Equal Status Acts.  

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 a prima facie case of indirect discrimination has been established by the complainant on the Disability ground in terms of sections 3(1)(c), 3(2)(g) of the Equal Status Acts, 2000 to 2008, and I find that the respondent has failed to rebut the allegation of discrimination.  I also find that the respondent has discriminated against the complainant on the disability ground by failing to provide reasonable accommodation in accordance with Section 4(1) of the Equal Status Acts, 2000 to 2004.

6.2             In considering the level of redress to be awarded in this case, I have taken cognisance of the fact that the complainant was not refused access to the respondent’s DART service.  The discrimination to which the complainant was subjected in this case arose as a result of the implementation by the respondent of the scheme which imposes the requirement upon him, as the holder of a Free Travel Pass, to present at the ticket office on each day of travel in order to acquire a ticket, in circumstances where other customers without a disability who do not avail of the Scheme are not required to do so.  I am mindful of the fact that although the complainant was inconvenienced by the implementation of this requirement and that it made his access to the service unduly difficult; he was, in fact, able to avail of the service.  I am therefore of the view that a high award is not appropriate in this case.  In accordance with section 27(1)(a) of the Acts, I award the complainant the sum of €750 in compensation as redress for the inconvenience caused. 

6.3             I also order, in accordance with Section 27(1)(b) of the Acts, that the respondent review its policy in terms of the requirement for the holders of Free Travel Passes to present at the ticket office on each day of travel to acquire a ticket in order to ensure that the policy is in full compliance with the terms of the Equal Status Acts, 2000 to 2008.

Enda Murphy

Equality Officer

2^nd March, 2009