The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774150
E-mail: info@equalitytribunal.ie
Website: www.@equalitytribunal.ie
Equal Status Acts 2000-2008
Decision
DEC-S2010- 050
A Complainant
v.
British Midland Airways Ltd
(represented by Arthur Cox)
File Reference: ES/2008/0229
Date of Issue: 5th November 2010
Key Words
Equal Status Acts, 2000 -2004 - Direct discrimination, Section 3(1) - Family Status, Section 3(2)(c), less favourable treatment - section 5(1), access to a service - air travel - requirement for photographic identification, prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred complaints to the Director of the Equality Tribunal under the Equal Status Acts, 2000 to 2008 on the 2nd December 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 Acts, 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 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 19th July 2010.
1. Dispute
1.1 The dispute concerns claims by the complainant that he was discriminated against by British Midland Airways Limited on the family status ground contrary to Section 5 of the Equal Status Act, 2000-2008 in relation to travelling by air with his infant daughter.
2. Summary of the Complainant's
2.1 The complainant's case is that he was discriminated against by the respondent on the family status ground when he was asked for photographic identification for his 8 month old infant daughter before boarding a flight to London. He submitted that himself, his wife, his three children and the childrens' nanny were travelling to London on the 2nd of June 2008 and they checked in at the desk and received boarding cards for all of them including his infant daughter. They then proceeded to the departure gate. At the departure gate as they attempted to board the plane they were stopped by a member of staff at the gate and asked for photo identification for their infant child which they did not have. They were refused permission to board at that point. Their other two children had identification.
2.2 The complainant believes that he did not require photo identification for the infant as he had already travelled with the respondent from London to Dublin the previous week and was not asked for any identification for her. The complainant said that he suggested to the person at the departure gate that the only type of photo identification they could possibly have for such a young child was a passport. The staff member then said that was what was required. The complainant said he pointed out that passports were not required for British and Irish citizens travelling between the two countries. The staff member said that was not relevant and went on to say that she would accept a birth certificate as proof of identity. The complainant had not got the birth certificate as it was at their home in London. The staff member insisted that the complainant and his family could not travel with British Midlands unless they had either photographic identification or the birth certificate for their infant daughter. The complainant pointed out that that they had travelled with British Midlands on a number of occasions and had not been asked for such identification and had, in fact, travelled with his infant daughter from London to Dublin the previous week and had not been asked for identification. He also pointed out that he had already got a boarding card for her on which she was not named because she was not occupying a seat. He also pointed out that the British Midland's term and conditions on the website specified that photographic identification was not required for children under 16, who were travelling with their parents. The complainant said that when he asked the member of staff what purpose such identification would serve, given that the name of his daughter was not on the boarding pass, he said that the staff member said that without such identification she could not be sure the baby was theirs and suggested that the baby could belong to someone else. The complainant said that both he and his wife found these comments very upsetting.
2.3 After a telephone call by British Midland staff to their offices in London the complainant and his family were allowed to board the plane and travel to London. They were informed that it was a major concession by the airline and that in future they would be denied boarding if they did not produce photo identification for their infant daughter. The complainant wrote a letter of complaint to the respondent. He received a letter of response in which the respondent apologised for any inconvenience and disappointment caused by the incident and said that they were seeking clarification from the Department of Transport about the type of identification required for very young children, such as his daughter. He was advised in that letter that, in the meantime, if the family was travelling with the respondent he should carry his daughter's birth certificate until he obtains a passport for her. The complainant said that he was not happy with the response and submitted that, because he was required to carry identification for his infant daughter in future, his family could no longer travel with the respondent. The complainant got in contact with the Department of Transport and he states that he was informed by the Department that the guidelines that they issue to the airlines from time to time as regard the procedures to be applied for security purposes were never intended to apply to very young children such as his infant daughter.
3. Summary of the Respondent's Case.
The respondent submits that the complainant was not discriminated against on the family status ground when he was requested to produce photographic identification for his infant daughter. They accept that the complainant was asked for identification for his daughter and was not able to produce same. It was submitted that all passengers, at the point of boarding, are asked to produce photo identification and a valid boarding card and any passenger who cannot do so are denied boarding. This rule is applied strictly by their agents at Dublin Airport who operate the flights for them and there is no exception for very young children.
3.1 They submitted that the Department of Transport requires the airline to check identification for all passengers boarding the plane. The Department issues guidelines on security matters and immigration control and are in regular contact with the respondent as regards updating same. Since they introduced online check-in around July 2006 the Department requires that photographic identification for all passengers is checked at the departure gate regardless of where the passenger checks in. The Departments instructions to the airline is that where a passenger is not able to produce a valid photo ID (a passport, driving license with photo or a national ID card) that passenger is not allowed to board. While a passport is not required under the Common Travel Area which includes travel between Ireland and England, the Department of Transport enforces a requirement for all passengers to submit to an identity check which requires the presentation of photographic identity. It was submitted that it is particularly important to be able to identify children as there is a particular concern within the airline industry in respect of child smuggling and trafficking and attempts at abductions.
3.2 On the respondents website the respondent states that in relation to the common travel area between Ireland and England passengers are required to have either a valid passport or some form of acceptable ID. The website goes on to say that passengers who are under 16 travelling with an adult on the same booking does not require photo ID to travel between Ireland and England, but that it is advisable for them to have some form of identification such as a birth certificate, bus pass or a student ID.
3.3 The respondent submits that the complainant was requested for photo identification for his daughter at the boarding gate in accordance with company policy and when he could not produce same he was requested to provide a birth certificate which he did not have. After he informed their agent at the departure gate that he had travelled from London to Dublin the previous week without any identification for his infant daughter, their agent contacted British Midlands in London and got permission for the complainant and his daughter to board the plane in Dublin without the appropriate identification.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation was whether or not the complainant was discriminated against on the family status ground contrary the Equal Status Acts. In reaching my decision I have taken into account all the written submissions, made to me by the parties in the course of my investigation into the complaint.
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)(c) provides: "that one has family status and the other does not or that one has a different family status from the other (the ''family status ground''),
and family status definition under Section 2 is:
"''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,"
4.2 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 he 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.
4.3 The complainant has a family status and is covered by the Acts. The complainant submits that he was discriminated against on the family status ground when the respondent (i) asked him to produce photographic identification for his infant daughter at the departure gate which he submits was contrary to the respondents terms and conditions of travel for infants, (ii) that he was subjected to abusive and offensive comments during the episode, and (iii) the requirement that he carries a birth certificate for his child pending the issue of a passport for her constitutes ongoing discrimination because it is directed at him personally and is a variation to the standard terms and conditions that applies to all other passengers. He submits that all of the above constitutes discrimination on the family status ground in that passengers travelling without infant children are carried in accordance with the respondent's terms and conditions of travel. In support of his complaint, the complainant submitted that he no longer travels with the respondent when he is accompanied by his family because he is able to travel with another airline without having to carry photographic identification for his infant child.
4.4 The respondent denies discrimination on the family status ground and submits that the complainant was not treated less favourably than any other passenger with or without children presenting for a flight between Ireland and England in that all passengers are asked for identification.
4.5 The 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 am satisfied from the evidence that all passengers are asked for identification when travelling between Ireland and England. I note that the complainant accepts that he provided identification for his two other children which satisfied the respondent's requirements. Likewise I note that the respondents terms and conditions of travel does not differentiate between children under 16 and infant children such as the complainant's. The terms and conditions state that it is advisable to have identification for customers under 16 who are travelling with an adult on the same booking. The complainant is seeking to compare the situation with a person who is travelling without very young children. It should be noted that such a person is also required to carry photo identification also. In order to establish a prima facie case of less favourable treatment on the family status ground, the complainant has to show that he was treated less favourable than a person with a different family status or a person with no family status. I am satisfied from the evidence that all customers regardless of their family status are required to carry appropriate identification for all persons travelling with them. I am satisfied therefore, that the complainant has not established that he was treated less favourably on the family status ground than another person with a different family status or a person with no family status was treated or would have been treated in similar circumstances.
4.6 In relation to the complainants complaint of abusive and offensive treatment, I am not satisfied that the complainant has produced any evidence to support the claim. I am of the view that the complainant's conversation with the respondent's staff at the departure gate solely concerned the fact that he had no identification for his infant daughter, and the concerns of the staff about the implications of allowing the complainant and his family to board the plane without appropriate identification for his infant daughter. I am also satisfied that the respondent's advice to the complainant to carry a birth certificate for his daughter when travelling with the respondent pending getting a passport for her cannot be construed as discriminatory treatment on the family status ground.
I am satisfied that the complainant has adduced no evidence to support the complaint of less favourable treatment on the family status ground. Accordingly, I find that the complainant has failed to establish a prima facie case of discriminatory treatment contrary to the Equal Status Acts.
5. Decision
5.1 For the foregoing reasons, I find that the complainant has failed to establish a prima facie case of discrimination on the family status ground in terms of Sections 3(1)(a), 3(2)(c), and contrary to Section 5 of the Equal Status Acts.
_________________
Marian Duffy
Equality Officer
5th November 2010