Decision
DEC-S2010-036
Rhoda Neary & Jenny Neary
(represented by Donnelly, Neary & Donnelly, Solicitors)
v.
Dublin Airport Authority
Key words
Equal Status Acts, 2000 - 2008, Direct discrimination, Section 3(1) - less favourable treatment, Disability - Section 2 (1) and 3(2)(g), special treatment or facilities to accommodate the needs of a person with a disability - Section 4(1), Section,, 5(1) - discrimination in the provision of services, admissibility-section 22 notification. power of Equality Authority to take a complaint, prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainants referred claims to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008. On the 19th April 2010, 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 case to me, Marian Duffy, 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, 2000-2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 10th June 2010 and the final information was received on the 5th July 2010.
1. Dispute
1.1 The dispute concerns a claim by the complainants that they were discriminated against and treated less favourably on the disability ground and that the respondent failed to provide them reasonable accommodation in accordance with section 4(1) of the Acts.
2. Summary of Complainant's case
2.1 Both the complainants have a mobility disability and are regular users of the Dublin Airport disabled car park. It was submitted on behalf of the complainant, Mrs Rhoda Neary, that on the 4th of April 2009 she travelled through Dublin Airport with her son Mr. Kevin Neary and they parked in the disabled car park where they were charged a daily rate of €9.50 . On the 3rd July 2009, Mrs Jenny Neary travelled to Dublin Airport with her husband Mr. Kevin Neary and parked in the same disabled car park and was charged the same rate. They submitted that the cheapest car parking rate for disabled parking was €9.50 per day whereas the cheapest daily rate for an able bodied person in the long-term car park had been reduced from €9.50 to €7.00. The disabled parking is located in block B which is directly opposite the terminal building. The building also contains a short-term car park for able bodied users and the daily charge for parking there is €40.
2.2 During 2008 the respondent commenced an advertising campaign that parking in their long term red car park could be pre-booked online at a reduced rate of €7 per day but a similar reduced rate was not offered for disabled parking. The complainants submitted that the option to book the disabled parking online at a reduced rate was not made available for disabled users. They further submitted that parking in the long-term red car park was not an option for them. There was no dedicated disabled parking spaces or assistance for disabled people, it was about a kilometre away from the terminal building, the surface was very uneven and there was no lighting. They complained to the respondent that the cheaper daily parking rate was not available to disabled people and could not be booked online. They submitted that this treatment constituted discrimination on the disability ground. They accept and acknowledge that the respondent has now provided disabled parking, assistance and dedicated transport in the red car park, and this parking is provided at the reduced rate for disabled people regardless of whether they book online or not. They also submit that the website has been upgraded. They also state that personal assistance has been upgraded at the disabled parking in Block B.
2.3 They submit that they were discriminated against on the disability ground and treated less favourably than an able bodied customer who could avail of reduced parking rates by pre-booking a car space online in the red car park. This facility was not available to them because of their reduced mobility and the lack of appropriate facilities in the red car park. They also submit that the failure to provide facilities for disabled parking in the red car park up was a failure to provide reasonable accommodation contrary to section 4(1) of the Acts.
3.1 Respondent's Case
The respondent denies discrimination and submitted that they operate a designated disabled parking area in a car park known as Block B which is on the lower ground floor and directly opposite the entrance to the terminal building. There is a daily rate of €9.50 and disabled drivers can park there long term. There is a separate entrance for this car park in Block B which also has a short term car park and the daily rate for people wishing to use this car park is usually €40. The respondent also operates 2 long term car parks, known as the red and blue car park, which are located about a kilometre from the terminal building. The red one is a long term and the blue one is a long term overflow car park. The daily rate in the red car park was €9.50. In 2008 the respondent introduced a discounted daily rate for customers using the red car park provided that an advance booking is made online at least 48 hours beforehand. The discounted rate is €7 or as low as €4 on some occasions. The short term car park weekend daily rate was reduced from €40 to €20. The disabled car parking charges of €9.50 in Block B were not reduced because a significant reduction applied already in comparison to the rates charged for short-term parking.
3.2 The respondent said that while there were no designated disabled car parking spaces in the red car park before June 2009, the transport provided from this car park to the terminal building was wheelchair accessible. The respondent submitted that since June 2009 they have provided dedicated disabled parking spaces and dedicated transport and other assistance in the red car park and disabled persons can now avail of the cheapest rates which are advertised online. A disabled driver does not have to make an advance booking to avail of the cheapest rate.
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainants were discriminated against contrary to Section 3(1)(a) and 3(2)(g) of the Equal Status Acts and in terms of Section 5 (1) of that Act. The complainants also alleged that the respondent failed to provide reasonable accommodation for them contrary to Section 4(1) of the Act.
In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
4.2 Complaint of Jenny Neary
The first matter I have to consider is the admissibility of Ms. Jenny Neary's complaint. The respondent submitted that they had not been notified of the complaint in accordance with the Act. They submitted that they were only notified of a complaint from Jenny Neary when they received the documentation from the Tribunal. They said that they had been in correspondence with the solicitor concerning a complaint from Ms. Rhoda Neary and none of the correspondence mentioned Jenny Neary in the subject line.
4.3 The complainant's solicitor submitted that the respondent was well aware of the complaint and that he had been in correspondence with the respondent since September 2008 when the matter of discrimination first arose. He said that through the protracted correspondence in the matter and telephone conversations with the respondent that they were well aware of the name of his client. He also submitted that copies of correspondence with the Office of Aviation regulator was also sent to the respondent and this correspondence would have notified the respondent that Jenny Neary was claiming discriminatory treatment.
4.3 Section 21(1) of the Equal Status Acts provides that :
"21. -- (1) A person who claims that prohibited conduct has been
directed against him or her may, subject to this section, seek redress
by referring the case to the Director.
(2) Before seeking redress under this section the complainant --
(a) shall, within 2 months after the prohibited conduct is alleged
to have occurred, or, where more than one incident of
prohibited conduct is alleged to have occurred, within 2
months after the last such occurrence, notify the respondent
in writing of
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the
respondent's response to the allegation, to seek
redress by referring the case to the Director, and
(b) may in that notification, with a view to assisting the complainant
in deciding whether to refer the case to the
Director, question the respondent in writing so as to
obtain material information and the respondent may, if
the respondent so wishes, reply to any such questions."
4.4 I note that the complainant's solicitor referred a complaint to the Tribunal alleging ongoing discrimination of Ms. Jenny Neary on the disability ground by the respondent in relation car parking for the disabled at Dublin Airport. The complaint was received by the Tribunal on the 14th September 2009. There were a series of correspondence and emails attached to the complaint between the complainant's solicitor and the respondent and also responses from the respondent. There was also correspondence from the complainant to the Commission for Aviation Regulation and responses. In an email to the respondent dated 17th of September 2008, the solicitor sets out a complaint about the differential between parking rates at Dublin Airport for an able bodied person and a disabled person and said that in the absence of a response, he stated that he would make a complaint to the European Commission. He also said, in that letter, that his wife who is a wheelchair user had to board the plane last when they flew with a particular carrier. One of the letters attached to the complaint addressed to Dublin Airport Authority and dated 6th of March 2009, had a hand written note on top stating: "Letter stating intent to refer matter to the Equality Tribunal" In that letter the complainant's solicitor referred to a number of matters including EU Regulations concerning rights of disabled persons when travelling by air. He also referred to discrimination by the respondent and said that they reserved the right to refer the matter to the Equality Tribunal. The solicitor did not name the complainant. I note that in a further letter of the 21st April 2009, which was a response to a letter from the Dublin Airport Authority, the complainant elaborated on the complaint of discrimination and said that he intended to refer the matter to the Equality Tribunal, but did not name the person complaining about the discrimination.
4.5 Following the hearing the solicitor provided further correspondence to the Tribunal in relation to the complaint. I note that in emails to the European Commission he named his client as Jenny Neary and in correspondence with the Equality Authority he referred to his wife and said that she was disabled and they used the disabled car park at Dublin Airport. In an email to the Commission for Aviation Regulation the solicitor said that he was making a complaint on behalf of his client Jenny Neary. I was also referred to an email of the 14th of July 2009 from the complainants solicitor to the respondent as evidence of notification of the complaint to the respondent. In that email the solicitor stated:
"On the substantive issue the fact remains that the DAA discriminates as it charges disabled persons more to park than able bodied persons. The issue is simple and we intend to bring the matter as a test case to the Equality Tribunal."
4.6 While I am satisfied from the correspondence that passed between the parties, that the respondent was notified of the nature of the complaint and the intention to refer the matter to the Equality Tribunal, I am not satisfied that the correspondence clarified to the respondent that a complainant named Jenny Neary was seeking redress in respect of prohibited conduct. It is clear that the solicitor sent correspondence to other public bodies such as the Commission for Aviation Regulation identifying Jenny Neary as a disabled person and who was complaining to that body. I note that the solicitor was in correspondence with the respondent about Ms. Rhoda Neary's complaint and she was clearly identified as the complainant. I find it surprising that if a complaint was being notified to the respondent on behalf of Ms Jenny Neary under section 21(2) of the Act, and before it was referred to the Tribunal as required by that section, that the complainant was not clearly named in the correspondence to the respondent. I cannot accept that the respondent was in a position to identify the complainant from the correspondence served on them prior to the referral of the complaint to the Tribunal.
4.7 Having examined all the correspondence, I am of the view that the complainant's representative was complaining in general about alleged discriminatory treatment, by the respondent, of disabled people who wished to use disabled parking facilities provided at Dublin Airport. There is no provision in the Equal Status Acts for such a referral to the Director from a representative. Section 23(1) provides that the Equality Authority may make such a referral and provides
" Where it appears to the Authority that --
(a) prohibited conduct --
(i) is being generally directed against persons, or
(ii) has been directed against a person who has not made
a claim under section 21(1) in respect of the prohibited conduct and it is not reasonable to expect that the person will do so, ........
the matter may be referred by the Authority to the Director."
4.8 I find that the notification of the complaint to the respondent does not meet the statutory requirements of section 21(2) of the Acts in that the complainant was not identified as the person who claimed that prohibited conduct had been directed against her. I find therefore, that the complainant, Ms. Jenny Neary, failed to serve a valid statutory notification on the respondent in accordance with section 21(2) and the complaint is therefore inadmissible.
4.9 Complaint of Rhoda Neary
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
3. -- (1) For the purposes of this Act, discrimination shall be taken to occur --
(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ''discriminatory grounds)''
Section 3(2)(g) provides that: as between any two persons, the discriminatory grounds ... are ... that one is a person with a disability and the other either is not or is a person with a different disability,"
4.10 Section 38A (1) provides that the burden of proof is:
" Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."
It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.11 The complainant has a disability and is covered by the Acts. The complainant submits that the pricing policy of the respondent in relation to parking at Dublin Airport is discriminatory on the disability ground because she could not avail of the cheapest rate due the lack of facilities for disabled persons in the red car park. It was submitted that the complainant was treated less favourably than a person who did not have a disability and who could avail of the cheaper rate of parking in the red car park. It was also submitted that the failure of the respondent to provide disabled parking facilities in this car park so that the complainant could avail of the reduced rates was a failure under section 4(1) to provide reasonable accommodation.
4.12 The first matter I have to consider is whether the treatment of the complainant amounted to less favourable treatment than another person in a comparable situation contrary to section 3(1). I note that the respondent provides long-term disabled parking at a reduced daily rate of €9.50 directly opposite the airport terminal building in a building known as Block B. The complainant is seeking to compare the situation with the parking rates available in the long term red car park for customers who booked online. This car park is not adjacent to the terminal building and is therefore not in a comparable situation. I am of the opinion that the most appropriate comparator is a customer who uses the short term car park in Block B. I note that such a customer is charged a daily rate of up to €40 to park there in comparison to the daily rate of €9.50 charged to a disabled person. The complainant was charged a much more favourable rate to park in a comparable car park. I am satisfied therefore that there is no evidence to support the complainant claim of less favourable treatment on the disability ground. I find that the complainant has failed to establish a prima facie case of discriminatory treatment.
4.13 The next matter I have to consider is reasonable accommodation. Section 4 of the Equal Status Act provides that, inter alia:
"(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.
In considering reasonable accommodation, I note that the section of the Act requires the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". This means that the Act requires the respondent to show that it did everything it could reasonably do to accommodate the needs of the complainant. The respondent has provided over 50 disabled parking spaces in Block B at Dublin Airport in the most convenient location to the terminal building. I am satisfied that the convenient location of these parking spaces enables disabled passengers to access the terminal building at the nearest point and fulfils the requirements placed on a service provider under Section 4 of the Act. I find that the respondent did not fail or refuse to provide disabled parking for the complainant at Dublin Airport.
4.14 I have also considered whether the respondent was acting contrary to section 4(1) by not providing disabled parking facilities at the red car park. I note that the red car park was located a kilometre from the terminal building and special facilities were already provided at a much more convenient location to the terminal building. In the circumstances I cannot hold that the lack of disabled parking in the red car park prior up to June 2009 can be construed as a failure by the respondent to provide reasonable accommodation under the Act. I note that the complainant conceded that the parking at Block B was a superior facility and that they would not be availing of the new disabled parking facilities now offered at the reduced rate in the red car park.
4.15 The complainant also submitted that the price differential between Block B and the red car park and the fact that disabled parking in Block B could not be booked online at a reduced rate constituted a failure to provide reasonable accommodation. I am not satisfied that this could be construed as discriminatory treatment or a failure to provide reasonable accommodation contrary to section 4.
In relation to Section 4 of the Act, I note that, in a Circuit Court appeal from a decision of the Equality Tribunal in the case of Deans v Dublin City Council, Judge Hunt considered the concept of reasonableness in the context of that Section of the Act. Hunt J. stated: " ...reasonableness must be judged according to the context of the individual case........ The City Council is entitled to bear in mind all the extensive and considerable social, legal and policy considerations ...... and they are indeed relevant to the decision as to what is reasonable in the particular case.... The Housing authority is not obliged to submit to every wish expressed by a disabled person in the context of an application for facilities..... All that it is commanded to do by the equality legislation is to devise a "reasonable" solution to a problem, not to achieve perfection and not to give in to every demand that is made of it,"
In applying this rationale to the case in hand, I cannot hold that charging different rates for different parking facilities constitutes a failure to provide reasonable accommodation contrary to the Act. I am satisfied that it was reasonable in the circumstances to charge a higher daily rate for disabled parking in Block B than the parking rate applied for online booking for non-disabled users of the red car park. It should be noted that the Block B rate is at a considerably reduced than the daily rate which applies for non-disabled users of the same car park. I find no discrimination whatsoever which is contrary to the terms of the Equal Status Acts.
5. Decision
For the foregoing reasons, I find that the complainant, Ms. Rhoda Neary, has failed to establish discriminatory treatment contrary to section 3(1) of the Act. Likewise I find that the complainant has not established that the respondent failed to provide her with reasonable accommodation contrary to section 4(1) of the Act.
I also find that the complainant, Ms. Jenny Neary, failed to serve a valid statutory notification on the respondent in accordance with section 21(2) and the complaint is therefore inadmissible.
___________________
Marian Duffy
Equality Officer
29th July 2010