THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 079
PARTIES
Siobhan Twomey
(Represented by Siobhan Phelan BL, instructed by the Equality Authority)
-v-
Aer Lingus
(Represented by Arthur Cox, Solicitors)
File Reference: ES/2006/0024
Date of Issue:10th November, 2009
Key words
Equal Status Acts 2000-2008 - Direct discrimination, section 3(1)(a) - Family Status ground, section 3(2)(c) - Disability ground, section 3(2)(g) - Victimisation ground, section 3(2)(j) - Reasonable accommodation, section 4 - Disposal of goods and provision of services, section 5(1) - Health & Safety information and procedures on board aircraft- bulkhead seats
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 on the 14th February 2006. In accordance with her powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director 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 on the 21st July 2008. The hearing of the case took place on the 26th May 2009 and the final correspondence was received on the 19th August 2009.
2. Dispute
2.1 This dispute concerns a complaint made by Ms. Siobhan Twomey, that she was discriminated against by the respondent, on the family status, disability and victimisation grounds in terms of sections 3(1)(a), 3(2)(c), 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 by failing to provide her with a 'bulkhead' seat on board a flight to Chicago, also by failing to supply her with appropriate health and safety information and by victimisation in seating her in an inappropriate seat at the back of the aircraft and in doing so treated her less favourably than passengers without her disability.
3. Background to the case
3.1 The complainant, Ms. Siobhan Twomey, is a paraplegic and accordingly is a wheelchair user. In early 2005 she booked a flight with the respondent to Chicago to travel on the 27th October 2005. She claims that she travelled with the respondent to the United States of America on many occasions in the past and was unhappy with the respondent's seating policy for disabled people. As a consequence she engaged in a series of correspondence with the respondent, where she complained about the seating policy for disabled passengers on board the respondent's A330 aircraft on long haul flights. She also made some suggestions to the respondent which she felt would help solve those problems and she sought reassurance that she would be accommodated prior to her trip in October 2005. The problems she had encountered predominately centred around the unavailability of the bulkhead seats for her, a disabled person. The tone of Ms. Twomey's letters became quite forceful, as she felt that the respondent's policy was discriminatory against her, a disabled person, and she put Aer Lingus on notice that she may have to take the matter further.
3.2 The bulkhead seats are the seats situated immediately after the physical partition on board an aircraft that in effect divides the aircraft cabin into different compartments. The aircraft of concern was the Airbus A330, which is designed with seating at the left, right and centre of the plane. Ms Twomey wanted to book and avail of the bulkhead seats position at the centre of the aircraft, at Row 31. There are two emergency exit doors on Row 31, one positioned by the bulkhead seats at the left hand side and one on the right hand side. The centre bulkheads seats are where the bassinets for passengers with infants are located, where young infants may be placed so as to give respite to the parent/minder while the aircraft is air bound on long haul flights.
4. Summary of the Complainant's case
4.1 The complainant, Ms. Twomey, claims that she was refused a bulkhead seat on a flight to Chicago on the 27th October 2005. The complainant stated that she asked to be seated in one of the four seats at the centre of the plane at the bulkhead, Row 31, so she could avail of the more spacious seats and have easier access to the disabled toilets. She claims that she was not looking for a seat adjacent to the exit doors at the left or right side of the aircraft on that row. She claims that she was refused on the basis that she was a person with reduced mobility and that she was told the allocation of such seats to persons of reduced mobility was prohibited under the respondent's seating policy. The complainant maintains that the four centre seats in the bulkhead should not be classified as "exit" seats.
4.2 Ms Twomey claims that she had travelled with the airline to the United States on many occasions in the past and was able to secure seating at the bulkhead. However, as she was unable to definitively secure these seats at the time of booking, either online or over the phone, she decided to write to the respondent outlining her difficulty with its seating/booking policy and asking for the policy to be reviewed in light of the points she had raised. She also requested permission to get a bulkhead seat for her flight on the 27th October 2005. Ms. Twomey claims she engaged in lengthy correspondence with the respondent and that she became very distressed and unhappy with how Aer Lingus dealt with her concerns.
4.3 The complainant claims that when she arrived at the check-in desk on the day of her flight she was astonished to find that not only had the respondent not provided her with a seat in Row 31, her preferred choice, she was assigned a centre seat further down the plane in Row 38, which would have required two transfers- up and over the armrest and then across the adjacent seat- for her to use the toilet facilities or, if required, to evacuate the plane in the case of an emergency. Ms. Twomey claims that she asked the Aer Lingus representative at the check-in desk to be seated at the bulkhead who replied that she was told not to assign Ms. Twomey a seat in Row 31. The complainant could not remember the full extent of the conversation with the passing of time and was unsure whether the refusal was aimed at her specifically or if it was a general reference that persons of reduced mobility were not allowed to be seated in bulkhead seats. However, at the time she felt that it was addressed to her personally.
4.4 The complainant claims that she is always anxious in the days leading up to a flight, and that she has to arrive in the airport well in advance of her flight to ensure she is top of the queue to try to book the most appropriate seat. She outlined the difficulty she encounters on long haul flights, particularly when she does not get to sit in appropriate seating close to the disabled toilets. She said that for her to visit the toilet she has to be lifted up over the armrest and then over the seats on to an aisle wheelchair disturbing all the passengers around her, which is very awkward, embarrassing and distressing. She claims that the airline discriminated against her by not having a proper seating policy for disabled persons and if bulkhead seating was not available to disabled passengers then aisle seats with movable armrests that lift up should at least be made available. Ms. Twomey claims that when she boarded the plane she asked the cabin crew if there were any seats with movable armrests available. A number of the cabin crew inspected the seats in that section of the plane, however none of the armrests could be moved. Ms. Twomey's husband also appeared as a witness and confirmed the same.
4.5 The complainant claims that she has in the past been able to negotiate a bulkhead seat with the check-in staff, including her return trip from Chicago to Dublin in 2005. The complainant claims that she felt she was victimised by the respondent in its decision to place her in a wholly inappropriate seat towards the back of the plane and this she believes was because she wrote and complained to Aer Lingus about its policies and stated that she may take further action. The complainant also said that in all the years that she had been in correspondence with Aer Lingus she was never notified that it had changed its policy in 2007 to allow disabled passengers in a centre bulkhead seats and that it was possible to pre-book one of the bulkhead seat by contacting the airline at a specific telephone number. This information, she claims, was only brought to her attention on the day of the hearing.
4.6 The complainant also stated that on previous trips with the respondent she was allowed to sit in the bulkhead seats while accompanied by her daughter when her daughter was under the age of two years of age. However, now that her daughter is over that age they are not allowed to sit in the bulkhead seats. Accordingly, the complainant maintains that the respondent is discriminating against her on the family status ground.
4.7 The complainant also claims that the airline discriminated against her in relation to the health and safety information provided by the respondent. She claims that there is no reference in the health and safety demonstration or information of the procedures in place for the evacuation of disabled passengers at the time emergency. Ms. Twomey claims that the health and safety presentation prior to takeoff and all the other documents related to able-bodied passengers. The complainant referred to a recent EC Regulation concerning the rights of disabled persons and persons with reduced mobility when traveling by air. The complainant outlined that this places a legal onus on the air carrier to ensure, inter alia, that safety information is publicly available on the carriage for disabled persons.
5. Summary of the Respondent's case
5.1 The respondent refuses to accept that it has discriminated against the complainant. The respondent admits that the complainant was in contact with its customer service department in relation to the use of the bulkhead seats however, it had informed her that unfortunately as these seats constitute part of the "exit row" it was not in a position to offer those seats to a person with reduced mobility as per company policy at the time. The respondent claims that its seating policy was developed on the premise that all the seats on the row where the exits were located were classified as not suitable for passengers who may impede the evacuation of all passengers at the time of an emergency.
5.2 The respondent claims that seats were not allocated until check-in and passengers with infants were given priority to the bulkhead seats, as this is where the bassinettes were situated for passengers with young children. The respondent claims that as a European carrier, it is subject to the requirement of the binding joint aviation regulations. The respondents claim that all its policies comply with all the applicable air safety requirements, Joint Aviation Regulations (Jar-Ops), and that its policies are approved by the Joint Aviation Authority, including the seating policy at that time. It referred to the regulations from where it established its seating policy, namely, "an operator shall ensure that [people with reduced mobility] are not allocated, nor occupy, seats where their presence could; (1) impede the crew in their duties; (2) obstruct access to emergency equipment; or (3) impede the emergency evacuation of the aeroplane".
5.3 The respondent totally refutes the claim made by the complainant that the check-in staff that Ms. Twomey dealt with were primed by the respondent to target her personally and prevent her from taking a seat in one of the bulkhead seats because she was involved in a series of written complaints against it. The respondent claims that it does not engage in such tactics and the message Ms. Twomey received was the general message in relation to its seating policy at the time. It pointed to the evidence from Ms. Twomey where she stated that when she asked to be moved closer to the toilet, to Row 32, she was accommodated without difficulty and this highlights its efforts to accommodate passengers and not to target or victimise them.
5.4 In addition, the respondent claims that that particular aircraft, Airbus A330, has a number of seats with movable armrests that would be suitable for disabled persons. It claims that it had in fact up to 14 seats with movable armrests, none of which however were in the section of the aircraft that Ms. Twomey was assigned a seat and that would explain as to why it was not possible to move any of the armrests that were tried by the air craft staff.
5.5 With regard to the health and safety presentation and information the respondent claims that it has to be careful with the information it releases due to security concerns in the current climate. The respondent claims it was fully aware of the safety requirements set out in the Jar-Ops regulations and that its health and safety information was fully compliant. The respondent claims that it is aware that it must provide basic information of such a nature under Regulation (EC) No 1107/02006 which came into operation in July 2008, which is a date after this complaint was made. The respondent claims that in the case of an emergency, cabin crew will provide a full demonstration of the procedures to be adopted during an evacuation. Also it claims that the health and safety demonstration at the beginning of each flight is set out in Jar-Ops and each and every Aer Lingus safety demonstration complies with these regulations.
6. Conclusions of the Equality Officer
6.1 Section 38(A) of the Equal Status Acts, 2000 to 2004 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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.
Discriminatory Treatment - Disability Ground
6.2 Ms. Twomey is a paraplegic and a wheelchair user and I am satisfied therefore that she is a person with a disability within the meaning of the Equal Status Acts. I am satisfied that the incident complained of actually occurred in that the complainant was refused permission to sit in the bulkhead seats on her flight to Chicago on the 27th October 2005. Therefore, the first question that I must address in the present case is whether or not that refusal constitutes discrimination on the disability ground within the meaning of the Equal Status Acts. In order for the complainant to establish a prima facie case of discrimination she must show that the treatment she received was less favourable than that which would have been given to another person, in similar circumstances, who either did not have a disability or had a different disability. In making this decision, I have taken cognisance of all the oral and written submissions made by the parties.
6.3 I have noted that the respondent has claimed that its policy at the time was not to allow persons with restricted mobility to sit in one of the bulkhead seats, as all the seats in this row were classified as an "exit row". Its reasoning being that at a time of an emergency the persons seated in this row should not impede a speedy evacuation. The complainant has made it quite clear that she did not request to sit in a seat adjacent to the exit doors but instead in one of the four seats at the centre aisle of the bulkhead. I also note that these bulkhead seats are where the bassinettes for passengers with infants are located and priority was given to such passengers for these seats. I also note the complainant's evidence that she was able to secure a bulkhead centre aisle seat on many other occasions, including her return flight from Chicago in 2005, which would appear contrary to the seating policy deployed by Aer Lingus at the time.
6.4 I am satisfied that the reasons for the refusal by the respondent to allow Ms. Twomey to sit in the bulkhead is based on its assertion that all the seats at the bulkhead formed part of the exit row and that persons seated at the exit row should not impede the crew at a time of an unplanned evacuation. I can understand the reasons why certain persons are prevented from sitting adjacent to the emergency exits in line with safety regulations . This policy seems logically based and in line with best international practice. However, I am somewhat concerned as to the classification of the seating in the centre row of the bulkhead, which the airline itself has since reviewed and changed on foot of this complaint. It is not contested that the respondent's policy was that disabled passengers were prevented from sitting there, as they may impede a speedy evacuation, whereas passengers with small infants were given priority to occupy these seats because the facility of the bassinette is located there. I am satisfied that had the respondent made a comparison between the passengers it was giving priority to sit at these seats, as opposed to the passengers it prevented from sitting there, namely passengers with a disability such as the complainant, surely the conclusion reached would be that both would cause similar levels of obstruction to staff at the time of evacuation and therefore, I am satisfied that the policy is inconsistent at best.
6.5 It is my opinion that the centre bulkhead seats were not adjacent to the exit doors and that those seated there would not unduly hinder an evacuation. This would also appear to be the conclusion that the respondent reached once it reviewed its policy on foot on this complaint. I am also satisfied that these seats would be the most appropriate seating for a person with a disability who may require additional space and who required assistance to visit the disabled toilets on a long haul flight. Accordingly, I am satisfied that the respondent had an incoherent seating policy that directly discriminated against Ms. Twomey, a disabled person, unfairly and without necessity. Therefore, I find that the complainant has succeeded in establishing a prima facie case of direct discrimination on the disability ground and that the respondent has failed to successfully rebut the inference of direct discrimination in relation to its seating policy.
6.6 In relation to the health and safety in-flight presentation and information, I am satisfied that the respondent provided all passengers on the flight to Chicago on the 27th October 2005 with the same set of instructions and information, or at least no evidence was presented to show the contrary. I note that the complainant felt that the information provided did not include her, a person with a disability and accordingly, she felt that the respondent discriminated against her because the information was not clear on the procedures that the airline had in place for the evacuation of a person with a disability. I have examined the relevant legal regulations and I am satisfied that the respondent has met its requirement under those provisions.
6.7 I note that most recent regulations came into existence in 2008, a number of years after this complaint was referred. I therefore have no jurisdiction to comment on the respondents obligations in relation to the most recent regulations when considering the case at hand. Accordingly, I am satisfied that the complainant was not treated less favourably in relation to the health and safety presentation and information provided by the respondent at the time.
Reasonable Accommodation
6.8 The parties have also made submissions, both in writing and at the oral hearing of the complaint regarding the issue as to whether or not the seating policy in question constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Equal Status Acts. Having regard to the totality of the evidence adduced, and the fact that I have already found that the respondent has directly discriminated against the complainant on the disability ground under Section 3(2)(g), I am satisfied that the issue of reasonable accommodation within the meaning of section 4 of the Acts does not arise in the context of the present case. Accordingly, I am satisfied that it is not necessary for me to consider this complaint in the context of section 4 of the Acts any further.
Discriminatory Treatment - Family Status Ground
6.9 The complainant claims that when she travelled with the respondent with her child of up to the age of two, she was given permission to sit in one of the bulkhead seats. However, once her daughter passed that age she was prevented from doing so. Accordingly, she claims that the respondent has discriminated against her on the basis of her family status. I note that section 3(2)(c) of the Acts provides that "For the purpose of this Act, discrimination shall be taken to occur ...", "...where a person is treated less favourably than another ...", where, "...one has family status and the other does not or that one has a different family status from the other". I note the definition of family status under section 2 of the acts states - ""family status" means being pregnant or having responsibility-
(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis..."
6.10 Having regard to the provisions above, I note that Ms. Twomey's family status, as defined by the legislation, is the same now as it was when she was afforded access to these bulkhead seats in the past. No evidence was presented to me at the hearing or otherwise to show that the complainant was refused access to this seating on the basis of her family status. The evidence adduced at the hearing was that priority for the bulkhead seats was given to passengers with young infants and that persons with a disability were prevented from sitting there. In the circumstances I am not satisfied that the complainant has established a prima facie case of discrimination on the family status ground.
7. Victimisation Ground
7.1 The complainant has claimed that she 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")."
I have noted that the complainant engaged in correspondence with the respondent which commenced with a recommendation by her to Aer Lingus regarding how it could provide disabled persons with a more dignified and comfortable experience on board its aircraft. During the course of the exchange of correspondence the complainant became increasingly displeased and incensed with the respondent. I note that she twice wrote to the respondent prior to taking her trip in October 2005 and mentioned that she was not happy with their response and that she felt the respondent was discriminating against her, a person with disability, and that she would be taking the matter further. I note in these letters and from the respondent's reply that it was fully advised and aware that the complainant was travelling with it to Chicago on the 27th October 2005. I am also satisfied that Aer Lingus was fully aware that the complainant had a disability and was looking to be seated in the most appropriate seat for her needs, which in the complainant's opinion were the bulkhead seats.
7.2 I am satisfied that when Ms. Twomey arrived at check-in on the day of the flight she was refused permission to take a bulkhead seat and she was informed that this was because of company policy. The evidence shows that she was assigned a seat in Row 38, towards the back of the airplane. I note the respondent states that seats not pre-assigned prior to check-in are matched with passengers who have not selected a seat on a random basis throughout the aircraft to balance out the plane. However, I note that the seats pre-assigned, in Row 38, to Ms. Twomey and then later assigned to her at check-in namely, Row 32, were not the seats that the respondent claimed to be the most appropriate for persons with a disability, namely the seats with movable armrests. The respondent claims that it does not have a copy of her booking however, it does have the full suite of letters from her outlining the difficulties she faces as a disabled passenger on long haul flights. I note that the respondent said that she did not contact the booking office to pre-select her seat, however she engaged in lengthy correspondence to the same company albeit a different department, the customer service department, who was aware of her plight and needs. I am satisfied that she was assigned an inappropriate seat, in Row 38, and when she asked to move, she was allowed to move but again to a seat that was not the most appropriate to her needs.
7.3 I am also aware that there were a number of other seats that would also allow for a more comfortable travelling experience, namely those seats with movable armrests, also located close to the toilets in the other compartment of the aircraft. I am surprised that when Ms. Twomey contacted the respondent about her request for suitable seating for long haul flights that she was not informed about the movable armrest options available on the aircraft. I am also surprised that when Ms. Twomey presented herself at the check-in desk that her seat allocation, firstly at row 38 and subsequently at row 32, were seats that did not have movable armrests. I note from the respondents evidence that it was of the opinion that seats with movable armrests were the most appropriate seating for persons with a disability, such as Ms. Twomey. I also note that Aer Lingus strictly applied its policy by refusing Ms. Twomey access to a bulkhead seat whereas it did not follow on and provide her with what it deemed the most suitable seating to meet her needs. I have also considered Ms. Twomey's evidence where she felt that the Aer lingus representative at the check-in who refused to give her a bulkhead seat was directed at her personally (see paragraph 4.3 above). Accordingly, on the balance of probabilities, I am satisfied that the complainant has raised an inference that there was less favourable treatment of her by the respondent on the victimisation ground under section 3(2)(j), which the respondent has failed to rebut.
8. Decision
8.1 In accordance with section 25(4) of the Equal Status Acts, 2000 to 2004, I conclude this investigation and issue the following decision:
8.2 I find that, further to section 38A of the Equal Status Acts, 2000 to 2004, the complainant has established facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to her, in that the respondent discriminated against the complainant on the disability ground section 3(1) and 3(2)(g) by treating her less favourably than someone with a different disability would have been treated in the same or similar circumstances, contrary to section 5(1) of the Acts. I also find that the complainant suffered victimisation contrary to section (3)(2)(j) of the Equal Status Acts.
8.3 In accordance with Section 27(1)(a) of the Equal Status Acts,
- I award the complainant the sum of €1,000 in compensation for the inconvenience caused and for the upset experienced by the respondent in respect of the discrimination suffered.
- I award the complainant be paid an additional sum of €3,000 in respect of the victimisation suffered.
8.4 In accordance with Section 27(1)(b) of the Equal Status Acts,
- I order that the respondent immediately review the communication procedures between the Customer Services department and other departments within the company to ensure that should complaints of a similar nature be received in the future, that they are dealt with in collaboration with other appropriate departments.
- I order that the respondent immediately review its training programmes for all front line staff with responsibility for dealing with passengers with a disability. The training programmes and material therein should include the most up to date information relating to Aer Lingus' policies.
_____________
James Kelly
Equality Officer
10th November, 2009