THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-070
Parties
Ciaran Goulding
and
Flynn Bros Rent a Car Ballygar t/a Budget Car Rental
File Ref: ES/2006/0133
Date of Issue: 6th October, 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 on the 12th October, 2006. 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 and final correspondence from the parties was received on 31st July, 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 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 replacement car for rental. He claims that he rang the respondent and asked to rent an automatic car with hand controls for a period of time.
3.2 The complainant claims he spoke with a number of (named) people in the company, however he claims that they gave conflicting information about the services available. He claims that he asked to speak to a supervisor, whom he claims informed him that it did offer the service, however the hand controls were out on hire for the next 10 days or so. Mr. Goulding stated that he was confused with the information he received, so he rang the respondent back a second time and spoke with a different representative who again said that the respondent did not offer that service, and when he subsequently asked for further clarification, he was told to speak with Mr. A. Mr. Goulding said he rang Mr. A and left his number as he was unavailable at that time. Mr. Goulding claims that Mr. A returned his call the following day and confirmed that the respondent did offer that service however, the hand controls were out on hire at that time for a 10 to 14 day period. He claims there were no additional discussions or arrangements made about booking a car, nor was any car offered by Mr. A for rental.
3.3 Mr. Goulding claims that 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, as this is a service that is generally available to the public. He said that he lives out in the countryside and without the use of a car he is quite isolated. He claims as a consequence of the respondent's failure to supply him with a service he was unable to continue with the normal activities of general independent living.
3.4 Mr. Goulding acknowledged that he did receive a letter from the respondent on the 28th September 2006, in response to the complaint notification. However, he claims he was very upset and offended with the response, particularly, because the respondent stated that Mr. Goulding's needs would have to be assessed before it could offer him a car for hire.
4. Summary of the Respondent's Case
4.1 The respondent, Budget Car Rental, totally denies that it discriminated against the complainant on the disability and victimisation grounds. Budget Car Rental is a large car rental company located in Ireland for over 25 years. It operates from a number of locations throughout the Republic of Ireland with a maximum seasonal fleet of 3,750 cars at that time.
4.2 The respondent presented Mr. A, from its Finance Department, to represent it as a witness at the hearing. Mr. A claims that the respondent receives very few of this type of request per year and accordingly, it did not have dedicated cars in its fleet that were permanently modified with hand controls fitted for rental. He claims that the respondent purchased two hand control devices in 2000 for fitting on to its vehicles when they were required. Mr. A claims that at the time of Mr. Goulding's request, he was under the impression that the hand controls were out on hire and that is the reason he told Mr. Goulding that it would be 10 to 14 days before it could offer him a service. Mr. A went on to outline the procedure it currently has in place to cater for customers with similar requests. He claims that customers are now referred to a leading specialist who provide modified cars for disabled drivers for hire. Also, he claims that the respondent has an internal practice in place whereby it make spot checks on its own staff to ensure they are issuing the correct instructions to its customers according to its current guidelines.
4.3 The respondent does not dispute that Mr. Goulding received conflicting information about its services when he contacted it on the 6th September 2006 and he apologised for that fact. However, he claims that Mr. Goulding was informed of the availability of the service on both the 6th of September by one of its local managers - at his initial telephone conversation - and again the following day, when Mr. A rang Mr. Goulding. He claims that he invited Mr. Goulding to make a booking on the 7th September, but Mr. Goulding chose not to take up the offer. Mr. A claims that the complainant would have been provided with a modified car within a reasonable timeframe once it had an opportunity to assess his needs based on his disability. Mr. A presented the Tribunal with a document of what he claims forms part of the assessment which is required by the respondent from the customer prior to the rental of a vehicle from it.
4.4 The respondent admitted at the hearing that it had made a mistake regarding the whereabouts and availability of the hand control devices at the time of Mr. Goulding's request. The respondent originally told Mr. Goulding on the 6th and again on the 7th of September 2006 that the hand controls were out on hire for 10 to 14 days, in fact Mr. A claims that the hand controls were found at the bottom of a cabinet in one of it offices and were not out on hire at the time. Mr. A claims that the respondent is mindful of it responsibilities under the Equal Status legislation and all staff are trained accordingly.
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. It claims that after some initial confusion it contacted Mr. Goulding, explained that it did offer the service and that it would take some time to sort out.
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 against 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 require 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 contacted the respondent and having spoken to a number of people did not hire a modified car from the respondent. I note that the respondent claims that its policy at that time was that it had purchased two hand control kits and they were available to be fitted on request. However, I note that the complainant claims that he received conflicting information from a number of the respondent's staff, during his telephone calls to the respondent on the 6th and 7th of September, 2006.
5.6 Having considered the evidence presented at the hearing, I note that Mr. A claims that when he rang Mr. Goulding back on the 7th September he told him that the respondent did indeed offer the service he was looking for however, the hand controls were out on hire for 10 to 14 days. Mr. A subsequently admitted at the hearing that the hand controls were not out on hire but were actually found buried in a drawer in one of its offices. Accordingly, I am not convinced that the respondent carried out any search for the hand controls on the 6th and/or 7th of September 2006. I note, from the conflicting messages communicated to Mr. Goulding by various staff working with the respondent, that it would appear to suggest that there was no clear understanding by those staff of the services it claims it had available. 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 a procedure was in place on the 6th September 2006. Nonetheless, I am satisfied that if it was in place that it failed to operate correctly and the complainant was ultimately unable to avail of the services.
5.7 I note the disputed evidence from the parties as to whether or not Mr. A offered Mr. Goulding the option to make a booking on the 7th September 2006. The respondent stated that it had received very few enquires of this nature, however it told the complainant that the hand controls "were out on hire" (twice), when it received his request. I note that the respondent later admits that they were not out on hire and were since found buried and forgotten about in some drawer and therefore not available when required. Accordingly, on the balance of probability, having weighed up the evidence, I find the complainants evidence to be more compelling and credible in this instance.
5.8 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 clarity in the information provided by its staff to Mr. Goulding "may have been a lack of knowledge or a degree of ignorance among some of the staff you spoke to because of their juniorality or otherwise". 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 be 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
5.9 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 has apologised to the complainant for the conflicting information he received and that it currently has put a procedure in place to deal with requests for services from disabled drivers.
______________________
James Kelly
Equality Officer
The Equality Tribunal
6th October, 2009