THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2009-068
Parties
Ciaran Goulding
and
Irish Car Rentals Limited
(Formally Argus Car and Van Rentals Limited)
(Represented by MacSweeney & Company, Solicitors)
File Ref: ES/2006/0135
Date of Issue: 23rd September, 2009
Decision DEC-S2009-068
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 and the final correspondence relating to the case was received the following day.
2. Dispute
2.1 This dispute concerns a complaint made by Mr. Goulding, that he was discriminated against by the respondent, Argus Car Rentals 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, 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 obtain the use of a rental car for a period of a few weeks. He claims that he rang the respondent 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 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 said that he lives alone out in the countryside and he is quite isolated; the nearest town is over 7 miles away.
3.3 The complainant acknowledged that he received a 'late reply' (outside the one month time limit) from the respondent to the complaint notification he sent to it outlining his complaint. He claims that the respondent's correspondence verifies his belief that it fully understood that he was disabled and it still made no attempt to meet his needs as a disabled driver.
3.4 The complainant claims that he checked the Car Hire Section of the Golden Pages and following this he contacted a number of car rental companies with a view to renting a car. He claims that he was unaware of any car hire companies that specialised in the rental of vehicles modified for disabled drivers at the time. He claims that the copy of the Golden Pages he consulted had no reference to such specialists in the Car Hire Section at that time. Whereas, he claims that the respondent was listed as a car rental company in that telephone directory and that is the reason he contacted it. He claims that the respondent failed to offer him any options, and he said had the respondent been aware of any companies specialising in providing modified cars for rent and referred him to a specialist, he would be more than satisfied with that as a service, however he claims that it did not assist him in any way.
3.5 The complainant, in reply to the respondent's claim that he requested a particular make of hand controls, said that he never sought a particular make. He claims that he only requested the standard hand control installation. Also, in reply to the respondent's claim that he would need to be assessed before he could be facilitated even by a specialist, Mr. Goulding said that in all the years he had being driving modified cars, the garage that he bought his cars from simply supplied him with the hand controls fitted and there never was an assessment requirement. Finally, Mr. Goulding said that none of his previous cars were ever damaged by the removal of a set of hand controls to affect the resale value of any of his cars.
4. Summary of the Respondent's Case
4.1 The respondent totally refutes that it discriminated against the complainant on the disability and victimisation grounds. The complainant originally contacted Argus Car Rentals Limited which has subsequently been taken over by Irish Car Rentals Limited. Argus Car Rentals Limited was a small sized car rental company, which operated from two depots in Dublin with a total fleet size of 250 cars in peak season, representing less than 2% of market share of the Irish Car Rental industry at the time. It employed between 10 to 15 people back in September 2006.
4.2 The respondent claims that Mr. Goulding's request for a modified car fitted with hand controls was the first and only request it had received of that nature. The respondent claims that the cost of modifying a vehicle and then setting it aside for such low demand is not commercially practical and therefore, the respondent did not offer that service. The respondent also claims that it did not have the necessary expertise to cater for the complainant's request. It claims that before the complainant could have rented a car, which was in some way modified - his needs would have to be assessed/appraised and the necessary requirement/modification identified in that appraisal would then have to be carried out to the vehicle by a specialist.
4.3 The respondent presented Mr. A, an expert from a specialist company as a witness, whose company provides transport solutions for disabled drivers, including the hire of modified vehicles for disabled drivers. Mr. A explained the procedure for the modification of vehicles and he also referred to the time and cost elements for carrying out such work on behalf of one of its clients. The respondent claim that a one off modification to one of its vehicles would have significant cost for the size of the company at that time. It claims that this is a complex area with so many variables for consideration and so many obligations. The respondent therefore maintains that the abovementioned options would require a considerable investment in personnel and/or financial resources and that in turn would amount to more than nominal costs.
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, however, it did not provide the specific product the complainant required at the time.
5.3 I note from the evidence presented that there is some dispute as to whether the complainant informed the respondent that he was disabled when he contacted it by phone on the 6th September 2006. Nevertheless, I am satisfied from the complainants 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. This view is reinforced by the respondent's letter of 11th October 2006 where the writer refers to the "supply of a specially equipped vehicle, specifically designed for use by a person with a disability". However, 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 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 a service from the respondent on the date in question having made a request for an automatic car adapted so that he would be able to use it. I note the company's policy at that time was that they did not provide such a service and therefore, were unable to facilitate the complainant with special treatment and/or facilities.
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 note that the respondent has since adopted a procedure to deal with requests from people with disabilities that may require special treatment or facilities, by way of referring customers to a specialist in the field.
5.7 As I have noted above, 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. These obligations require it to consider what special treatment it can put in place and the costs involved as a consequence. The respondent has highlighted that due to the low demand for such a service, it is not commercially viable to have a car permanently altered in its fleet and it claims that a specialist would be required to carry out this work and it does not have that expertise. However, it would appear to me that no other options were considered to provide for persons with a disability, such as the complainant, who required special treatment or facilities. Options such as its current policy - in referring customers to a specialist in the market, or indeed, having the option of installing the hand controls and then seeking to recoup some or all of the costs of the modification from the customer could have been considered. I am satisfied that the respondent should have been acutely aware of its obligations under the Equal Status Acts and rather than having no policy in place to provide assistance for people with a disability, such as the complainant, that it should have considered the alternatives that were available. Accordingly, I find that the respondent did discriminate 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 €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 currently has a procedure in place to deal with requests from disabled drivers for modified vehicles, however, it did not have a procedure in place in September 2006 and it failed to reply to the notification sent to it by the complainant within one month.
______________________
James Kelly
Equality Officer
The Equality Tribunal
23rd September, 2009