THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
DECISION DEC-S2010-010
Parties
Ita J. Carroll
(Represented by the Equality Authority)
and
Midleton Cabs
(Represented by Patrick J O'Shea & Co. Solicitors)
File Ref: ES/2008/0070
Date of Issue: 5th February, 2010
Decision DEC-S2010-010
Keywords
Equal Status Acts 2000 to 2008 - Direct discrimination, section 3(1) - Discrimination on ground of disability, section 3(2)(g) - Reasonable accommodation, section 4(1) - supply of goods and services, section 5(1) - visually impaired - guide dog - Taxi company.
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 25th April 2008. 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 1st April 2009. The hearing of the case took place on the 10th December 2009.
2. Dispute
2.1 This dispute concerns a complaint made by the complainant that she was discriminated against by the respondent on the Disability ground contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(2)(g) and Section 4(1) of the Equal Status Acts, and contrary to Section 5(1) of the Equal Status Acts, in that the respondent discriminated against her by refusing to send a taxi to pick her up because she was accompanied by a guide dog.
3. Summary of the Complainant's Case
3.1 The complainant, Ms. Ita Carroll, is visually impaired and is a guide dog owner. Ms. Carroll also has a hearing difficulty. She claims that she was in the shopping centre in Midleton on Thursday 29th November 2007, with her two young daughters and her guide dog. She claims that the weather was inclement as she was about to leave for home so she decided to travel home by taxi. She claims that she met up with her older daughter, Ms. A, at the shopping centre who contacted a taxi company on her behalf. She claims however that when the taxi arrived the driver refused to take her because of the guide dog.
3.2 Ms. A claims that she rang a second taxi company, the respondent, Midleton cabs. She claims that she was very specific with the operator and asked for a taxi for her mother and that she was to be collected at the shopping centre and brought to her home address and that she would be accompanied by her guide dog. She claims that the operator she spoke with refused to send a taxi because the company did not carry dogs. She claims that the operator told her that it would require special insurance to carry dogs.
3.3 The complainant claims that she and her children were forced to walk home that evening because of the respondent's failure to provide her with a taxi service. She claims that she was highly inconvenienced and very upset. She claims that she contacted the respondent on the 22nd January 2008 in writing, notifying it of her experience and outlining the fact that she felt she was treated unlawfully and discriminated against contrary to the Equal Status Acts. She claims that she never received a reply from the respondent in response to this notification.
4. Summary of the Respondent's Case
4.1 The respondent, Midleton Cabs Limited, is a taxi company which has been in existence for 16 years in the Midleton area. At the time of the alleged incident it had 5 vehicles available for hire and approximately 12 people employed. The respondent totally refutes the claim made by the complainant that it discriminated against her by refusing to send a taxi to collect her and her family on the evening of the 29th November 2007, because she was accompanied by a guide dog.
4.2 The respondent presented Mr. B, the base operator who took the call from Ms. Carroll's daughter, as a witness before the Tribunal on the day of the hearing. Mr. B claims that he has been working with the respondent for 16 years and has never had any type of complaint or problem in his time there. He claims that he recalls the telephone conversation on the evening in question. He claims that he recalls a request for a taxi to make a collection at Tesco's shopping centre for an unnamed person and her dog. He claims that the identity of the person was not made known to him and there was no mention of a guide dog, only a dog. He said that he told the caller that the company does not carry dogs and that was the extent of the conversation. He said the telephone conversation "was short and sweet".
4.3 The respondent claims that it has a policy not to carry dogs in its taxi cabs, however, it does carry guide dogs as it is aware of its obligations under the legislation. It presented evidence of its customer base in the Midleton area and stated it often provides service to people with disabilities particularly to and from the local hospital. It produced a handwritten document from what it described as a regular customer, who avails of its taxi service. This document states that "I [name] have a guide dog and have travelled with Midleton Cabs on several occasions without any problems". The writer claims that she could not attend as a witness due to a prior appointment, however, she signed the letter and listed two contact mobile phone numbers.
4.4 The legal representative for Midleton Cabs stated that the onus is on the customer and not the respondent to identify that the accompanying dog is a guide dog. The respondent claims that it has no difficulty in providing a service to the complainant and her guide dog had that been requested, however, it maintains that is not what was asked for on the evening in question. The respondent refutes the claim, made by the complainant's daughter, that it made any reference to "additional insurance to carry dogs". The respondent could not explain why it failed to reply to the original notification from the complainant, however it claims that when it received the first letter from the Equality Authority on behalf of Ms. Carroll, it approached its solicitor to deal with the matter on its behalf.
5. Conclusions of the Equality Officer
5.1 At the outset, I must state for the record, that on the day of the hearing the complainant was accompanied by her daughter and her legal representative. The complainant's legal representative stated on the day of the hearing that in the weeks leading up to the hearing Ms. Carroll's hearing had deteriorated to a very poor level, to the point that she was finding it increasingly difficult to communicate even with the aid of her hearing aid and loop system technology. I was advised by her legal representative that the complainant wished the hearing to proceed as scheduled on the basis that her daughter was the person who made the telephone call to the respondent on the day in question, which, in essence, is where the alleged discrimination occurred and she was present to give evidence of that telephone conversation. The respondent accepted that Ms. Carroll's hearing condition would restrict her giving direct evidence, however, it was willing to proceed on the basis that the main witnesses were present to give direct evidence. On the basis of the foregoing, I decided to proceed with the hearing.
5.2 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.
Discriminatory Treatment- Disability Ground
5.3 I am satisfied that the complainant is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. It is not disputed that a telephone call was made by Ms. Carroll's daughter to the respondent requesting a taxi and that a taxi was not dispatched on the basis that the customer was accompanied by a dog. The question before me for consideration is to determine, from the evidence presented, whether the telephone discussion between Ms A and Mr. B on the 29th November 2007 was in relation to an accompanying dog, or an accompanying guide dog. I shall also need to determine if the respondent failed to provide reasonable accommodation, as provided for under section 4 of the Acts, to the complainant following the information provided to it by the complainant's daughter during that telephone conversation.
5.4 I am satisfied that this complaint centres around a telephone call made on behalf of the complainant to the respondent where the principal issue for decision is whether the respondent knew that the complainant required special assistance to avail of its service, namely, allowing her to be accompanied in the taxi by her guide dog. Also, I note that the evidence presented from both parties is contradictory in relation to many aspects however, the common position between both parties is that this dispute is in relation to the carriage of a dog/guide dog. I am satisfied that no evidence was presented to suggest that the respondent refused her access to the service in question because of her disability, namely because she is visually impaired. Accordingly, I find that the complainant was not directly refused a service because of her disability.
Reasonable Accommodation
5.5 In the case of disability in considering whether discrimination occurred, further consideration must be made to the issue of the provision of reasonable accommodation to a disabled person. Section 4 of the Equal Status Act states as follows:
"(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."
5.6 Firstly, I must consider from the evidence presented, what was discussed during the telephone call on the evening of the 29th November 2007. In such situations the Equality Officer must decide on the balance of probabilities which version of events are more credible. In considering this issue, I note that there are a number of discrepancies between the evidence given by Ms. A at the oral hearing and the information regarding the alleged discrimination that was contained in the complainant's written submission to the Tribunal in advance of the hearing. For example, in the written statement it is stated that Ms. A "managed to get a taxi from her mother's house to her own home" after she helped her mother home from the shopping centre on the evening in question. However, at the hearing, Ms. A referred to a friend collecting her from her mother's house and bringing her back to her own home that evening. I also note there was other inconsistencies between the written evidence and the oral evidence such as in relation to the length of time the complainant had been assisted by the guide dog prior to the date of the alleged discrimination - one to two months was stated in the written submission as compared to six to twelve months, as presented in the oral evidence. I also note inconsistency between the evidence in relation to the length of time it took the complainant and her family to get home on the evening of the alleged discrimination - twenty five minutes was stated in the written submission as compared to ten minutes in the oral submissions.
5.7 I am of the view that the discrepancies in the evidence raise doubts regarding the credibility of the complainant's evidence in terms of the allegations of discrimination in the present case. Having regard to the evidence adduced, I am satisfied, on the balance of probabilities, that the evidence provided by the respondent's witness Mr. B is more compelling. Accordingly, I am satisfied that the respondent's witness gave a very credible account of the telephone conversation between him and the complainant's daughter on the 29th November 2007.
5.8 I will now address where the responsibility lies in relation to the determination whether reasonable accommodation is required. Here, it is necessary to determine if the respondent needs to adopt a proactive approach to seek information with regard to its customers when a service is requested. In the instance before me for consideration, I have found that the respondent was asked for a service, which included the carriage of a dog. I am satisfied that the respondent told the complainant of it's policy namely, that it does not carry dogs. The complainant claims that the onus is on the respondent to take a further step and ask the customer if the dog is a guide dog. However the respondent claims that the onus is with the customer to tell the service provider of its needs and that failure to provide special treatment or facilities would make it impossible or unduly difficult to avail of the service.
5.9 Again, it must be stated that the interaction between the parties was over the telephone, thereby the respondent was not in a position to visually evaluate the complainant's needs. I am satisfied that had the complainant, or in this case the complainant's daughter, informed the respondent during the telephone conversation that it needed the taxi to carry a guide dog and the respondent refused to do so simply because of its no dogs policy, the respondent would have a case to answer under the legislation. Likewise, I am satisfied that had the complainant, or in this case the complainant's daughter, given details of the complainant's disability and then stated that it required a dog to accompany her, that this would have been sufficient information for the respondent to make a reasonable assumption that the customer required special assistance for it to avail of its service. However, when the respondent is not provided with any details of its customers particular needs or information that would lead it to believe that the customer has particular needs, I believe that it is not the responsibility of the service provider to probe further if it is not obvious from the information already available. I am satisfied that in this case that onus rested with the complainant to provide clear information or instruction to the respondent in relation to Ms. Carroll's needs. I find that this information was not communicated effectively to the respondent in the present case. Accordingly, I find that the respondent did not fail in its obligations to provide reasonable accommodation within the meaning of Section 4 of the Equal Status Acts.
6. Decision
In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(g) and 4(1) the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.
______________________
James Kelly
Equality Officer
The Equality Tribunal
5th February, 2010