Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010-048
Mr Kevin O'Connor
-v-
Iarnod Eireann
File Ref: ES/2008/213
Date of Issue: 29 October 2010
Keywords: Equal Status Acts 2000-2008 - Disposal of goods and services, Section 3(2)(f), age ground -prima facie case - indirect discrimination
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 20 November 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, 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 27th April 2010 my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 14 October 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Mr O'Connor (hereafter "the complainant") that he was and continues to be discriminated against by Iarnod Eireann (hereafter "the respondent") on the grounds of age in terms of Sections 3(2)(f) of the Equal Status Acts, 2000-2008 by their refusal to allow him (as a pensioner and holder of a Free Travel Pass) to book his train tickets in advance, as all other passengers are entitled to.
2. Summary of the Complainant's Case
2.1 The complainant is a regular user of the respondent's train services, primarily between Dublin and Killarney. Prior to receiving his Free Travel Pass around 2006, he had regularly booked his ticket in advance of his travel date and never had any problems. On the October 2006 bank holiday weekend, he had intended to travel to Kerry, but when he presented at the ticket office in Heuston the day before his intended travel, they refused to issue him a ticket. He was informed that holders of the Free Travel Pass may only obtain their tickets on the day of travel. The complainant pointed out that the respondent itself had put advertisements in the newspapers reminding people to book their trains well in advance of the holiday weekend, as all the services would be very busy. The ticket agent said that this did not apply to people with a Free Travel Pass. The complainant was upset because he had arrived at the station at 6.30am in order to ensure that he got a ticket. Over the next several days the complainant initiated a series of phone calls with the respondent, mainly resulting in the respondent insisting that this was a regulation imposed by the (now) Department of Social Protection (who are responsible for issuing the free Travel Pass). The complainant investigated this with the Department of Social Protection who confirmed that the policy did not emanate from them. As a result of the situation, the complainant was unable to travel that weekend. Shortly afterwards he again tried to make travel plans but was unable to book his ticket in advance or reserve a seat either online or at the station.
2.2 In November 2006, following extensive correspondence and phone calls by the complainant, a meeting was arranged between the complainant and the respondent CEO. The complainant raised the following issues concerning him as a Senior Citizen:
- not being able to purchase single tickets in advance,
- not being able to purchase return tickets at all,
- not being catered for in the ticket section on the website and
- not being catered for by the ticket machines at Heuston Station.
The complainant did not find that the issues were addressed by this meeting.
2.3 For the next two years the complainant continued to follow up the issue with the respondent. During this time he was repeatedly told at Iarnod Eireann ticket counters, that due to a "social welfare rule", he was not allowed to buy tickets in advance, although in practice, some exceptions were made, at the discretion of the ticket officer. In order to demonstrate that this was not a "social welfare rule", he requested and received a letter from the (then) Department of Social and Family Affairs in April 2007 confirming this point. Additionally he spent considerable time studying in detail the CIE/IE Bye-Laws, Conditions of Carriage, 2008 Timetable and Rail Safety Act 2005, the former of which he was directed to by an employee of the respondent's. None of these documents provided any evidence that there was in fact a policy preventing Free Travel Pass holders from obtaining tickets in advance. However he continued to be advised at the ticket desks that there was such a policy and that this policy emanated from the (now) Dept of Social Protection. In June 2008 he finally received a letter from the CEO of Iarnod Eireann, confirming that it was their own policy to prevent Free Travel Pass holders from booking tickets in advance and that, for security reasons, they did not intend to change this policy. The complainant was further advised that he could reserve a seat in advance for €3 per journey and then get the ticket itself on the day of travel.
2.4 The complainant tested the system of reserving a seat in advance, but decided that he could not use it because it required him to tell a lie, ie: when he tries to reserve a "seat only", he gets a warning that he must be in possession of a valid ticket. He accepts that it is possible to use the system from a technological perspective, but since he cannot be in possession of a valid ticket in advance, he would have to tell a lie in order to use it. Therefore he does not use it.
2.5 Regarding the respondent's website generally, Mr O'Connor also points out that there is no information whatsoever provided for Senior Citizens. Even if the wording of the warning message was changed in order to allow him to reserve a seat, there is still no way for any other Senior Citizens to know that this facility may be used by Free Travel Pass holders.
2.6 Regarding the security issue, the complainant points out that although it is a rule that Free Travel Pass holders are required to have their travel Pass as well as their ticket available for inspection at all times during travel, he has never once in practice been asked to show his Pass either at the boarding gate or on the train itself. Therefore it appears to him that although there is a security measure readily available to the respondent, it is simply not being used.
2.7 After 2 years of attempts to get the issue resolved with the respondent, the complainant took this case to the Equality Tribunal. The specific incident which grounded this case was a refusal on 8 October 2008 by the ticket office at Heuston Station to allow him to obtain an advance ticket. During the oral hearing the complainant pointed out that after 4 years, he has never received a copy of the respondent's policy on the matter or a proper explanation of the reasoning behind the policy. This has caused him many fruitless trips to the train station and the stress of not knowing whether he will be able to get a ticket at busy times.
2.8 During the hearing Mr O'Connor clarified that the only redress he is seeking in this matter is a change of policy by the respondent in order to end discrimination against senior citizens and allow him to obtain his ticket in advance of travel.
Summary of the Respondent's Case
3.1 The respondent denies that it discriminates against the complainant on the grounds of age. They state that it is clear from the complainant's own submission that the reason for the alleged difference in treatment is that he has a free travel pass and not because of his age. Any senior citizen who wants to book in advance (and pay full price for a ticket) can do so by going online and booking in the same way as all other intending passengers. Therefore the respondent submits that it cannot be held that Senior Citizens are discriminated against on the grounds of age.
3.2 The respondent said that the policy in question has been in place since at least 2001 and possibly since the introduction of the Free Travel Pass Scheme. There was no specific written document which they could point the complainant to, but they said it was covered in their staff training.
3.3 The Respondent submitted that the Free Travel Scheme is well recognised as having potential for fraud. The travel Passes which are issued by the (now) Department of Social Protection do not have an expiry date or proper identification and they are not uniform in appearance. Additionally it is easy to counterfeit them and Gardai have uncovered factories producing invalid travel Passes. As there is no legislative basis for the Scheme, there are no grounds to prosecute offenders with invalid cards, and thus there is little or no deterrent against fraud. The respondent points out that there are over 600,000 free travel card holders and the possibility of fraud is a real concern to the company. Therefore the restriction that all Pass holders present themselves to the ticket office on the day of travel is reasonable in the circumstances.
3.4 The respondent said that the security reason for the policy, which requires Free Travel Pass holders to present on the day of travel, is that it ensures a much shorter timeframe between ticket issue and usage. The longer the time period between ticket issue and travel; the greater the opportunity for fraudulently passing or selling on the ticket. It was also suggested that if they could be booked online in advance, then it would be easy to (fraudulently) make tickets to order. Regarding the question of why the Free Travel Pass could not be checked at the boarding gate or on the train or at the exit barrier, the
respondent said that they could consider doing this. However they also said these locations would not necessarily be manned.
3.5 The respondent also points out that in the future they will introduce a Smart Card for integrated ticketing in Dublin and the Department of Social Protection will introduce a new public service card. These measures will allow them to improve services for the complainant and other Senior Citizens. There is no fixed timeframe however for the introduction of either the Smart Card or the public service card.
3.6 Upon questioning, the Respondent sought to distinguish this case from DEC-S2009-15 Thompson v Iarnod Eireann, where the Equality Officer found in favour of the complainant in a similar case on the grounds of disability. The respondent pointed out the two main differences between these two cases; firstly that reasonable accommodation played a major part in the previous case and secondly that there is no comparator in this case.
4. Conclusions of the Equality Officer
4.1 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, 2000 to 2008 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. In making my decision, I have taken into account all of the evidence, both written and oral, presented by the parties.
4.2 Less Favourable Treatment:
In the present case, there is little dispute between the parties in terms of the facts. The respondent operates a policy which prevents the complainant from getting his ticket until the date of travel. The complainant argues that this is less favourable treatment on the grounds of age, because other passengers may avail of more favourable ticketing options, ie: firstly they may purchase their ticket online or at the station, secondly they may purchase their ticket in advance of travel or on the day of travel and thirdly they may purchase return tickets or single tickets. He, on the other hand, may only obtain his ticket at a station ticket office; he can only get a single ticket and he cannot get the ticket in advance. Therefore there are fewer options available to the complainant and these options are less convenient. It is clear therefore that the complainant is subject to less favourable treatment with respect to the ticketing options available to him.
4.3 Direct Discrimination:
The respondent has pointed out that there can be no prima facie case of direct discrimination because the complainant is entitled to purchase tickets in the same manner as all other customers, irrespective of his age. This fact is undisputed and on this basis I accept the respondent's contention that there is no direct discrimination against the complainant on the grounds of age.
4.4 Indirect Discrimination:
However the next matter to be considered is whether the complainant has been indirectly discriminated against on the grounds of his age. Section 3(1)(c) of the Equal Status Acts makes provision for indirect discrimination:
"where an apparently neutral provision puts a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".
It is generally held that the burden on the complainant in a case of indirect discrimination is a high one. In considering the issue of indirect discrimination, I note that the complainant travels on the basis of his status as a Free Travel Pass holder. The Free Travel Pass Scheme is operated by the Department of Social Protection and it is available to a number of different categories of person, including persons over 66 years of age. In this complainant's case, his entitlement to the Pass arises as a result of being aged over 66. This Pass entitles him to unlimited travel on the respondent's Dart and Rail services. The Passes are issued by the Department of Social Protection, who pay a fixed amount to the respondent, irrespective of how much or how little travel is undertaken by the Pass holder. It is agreed by the parties that the holders of Free Travel Passes are subject to different conditions regarding the issuance of tickets, by comparison with non - Pass holders. I have already accepted the complainant's argument that these different conditions amount to less favourable treatment. Therefore I have formed the view that the requirements placed upon the complainant, as a holder of the Free Travel Pass, put him at a considerable disadvantage compared with other customers of the respondent who are in a different age category and who do not avail of the Scheme. I find that the conditions for members of the Free Travel Scheme fall within the definition of "apparently neutral provisions" referred to in the Acts. I find that the Free Travel Scheme members are predominantly aged over 66 or disabled or both, and therefore the imposition of these unfavourable conditions has a disproportionate effect on these groups.
Therefore I find that the complainant has overcome the high threshold required and raised a prima facie case of indirect discrimination which can only be rebutted by the respondent showing that the less favourable treatment can be objectively justified. If it can be shown to be objectively justified, the respondent must additionally prove that their means of achieving this aim are both appropriate and necessary.
4.5 Objective Justification:
The respondent submits that their reason for treating the holders of Free Travel Passes differently is due to the high risk of fraud, as outlined at 3.3 and 3.4 above. The written evidence provided by the Respondent to support this contention was dated and extremely vague; thus it can only be of limited evidential value. However I note the oral evidence of the respondent's marketing manager, that there is indeed a significant risk of fraud due to the lack of traceability and accountability for each Free Travel Pass issued. The respondent has no access to the database of Free Travel Pass holders and thus no foolproof way to check for invalid or counterfeit Passes. As a result they are not in a position to monitor suspicious usage in a meaningful way. Based on this evidence I accept that the respondent has a genuine security concern which objectively justifies the taking of some preventative measures.
4.6 Appropriate and Necessary Means:
4.6.1 Having accepted the respondent's objective justification, the question remains as to whether the actual measures they took were both appropriate and necessary to achieve that aim. The respondent has real concerns about fraud based on the quality and traceability of the travel Passes issued by the Dept of Social Protection. Their response is to oblige all travel Pass holders to obtain tickets in a substantially different way to other customers. During the oral hearing I asked several questions about the origin of this policy and potential alternatives to it. The answer in all cases was that they hadn't really thought about it and may consider it in the future. Despite the complainant's 4 years of correspondence with them on the matter and indeed in the oral hearing itself, the respondent's attitude to the Free Travel Pass Scheme appears to have been to give it minimal possible consideration. According to the respondent's own evidence there are over 600,000 free travel card holders and yet the respondent's website does not refer to the entitlements or obligations of these customers. According to the complainant's unrefuted evidence, Senior Citizens are not catered for, nor even given the briefest mention on the respondent's website.
4.6.2 The measures which the respondent did point to, in order to show their efforts towards diluting the effects of the less favourable treatment were:
- That it is possible to book seats online in advance of travel.
- That, as a result of the Equality Officer's order in the Thompson v Iarnod Eireann case, the respondent's policy has been changed to allow Pass holders to travel on the Dart/local Dublin train service, without obtaining a ticket for every trip.
- That they have initiated a pilot scheme which would allow the complainant to make an advance booking via a centralised point. This central office would have details of the complaint's Iarnod Eireann account number and the travel Pass number for both himself and his wife. If the complainant wants to book a return seat in advance, he can call this number, verify method of payment and credit card details. Then they will send the tickets to him by post. (However the complainant pointed out that this "pilot scheme" had only come into operation three weeks before the Tribunal hearing, which was remarkable given that he had been in contact with them for 4 years. He also pointed out that it was an extremely time-consuming procedure which seemed unlikely to be sustainable in larger volumes. Additionally he queried how many other testers were testing the "pilot scheme", but the respondent did not provide details). Therefore it seems fair to infer that while the complainant's particular situation may be remedied, it is unlikely that all other senior citizens will benefit. Additionally the complainant has no certainty as to how long this pilot scheme will last.
4.6.3 Despite the respondent's genuine security concerns and their efforts to resolve the issue outlined at 4.6.1, I nonetheless find that the measures undertaken to deal with the security problem are hard on the majority of good faith customers, such as the complainant, who wish to obtain their tickets in advance of travelling, for peace of mind and for convenience. Indeed the complainant himself, made the point during the hearing that he understands and accepts the respondent's security concerns and therefore he is not necessarily seeking to use the internet to purchase his ticket in advance. He simply wishes to be able to purchase it before he travels and he would be satisfied if the respondent allowed him to present himself in person at the Ticket Office up a week prior to his departure date in order to book the ticket. He believes that this would satisfy their requirement for his travel Pass to be checked by the Ticket Office and allay their concerns about larger-scale fraud on the internet.
4.7 Finding on Indirect Discrimination:
Having considered the means by which the respondent is pursuing its legitimate goal of tackling fraud, I conclude that the measures which are currently in place go beyond what is appropriate and neccessary. I find them to be disproportionate restrictions on a very significant group of passengers, rather than a targeted solution to a specific problem. Therefore I conclude that the complainant, as a person aged over 66 years and therefore member of the Free Travel Pass Scheme, has been indirectly discriminated against, when he was treated less favourably than non-Pass holders in the provision of tickets, and the respondent has failed to show that the means of achieving their legitimate aim are both appropriate and necessary.
5. Decision
5.1 In accordance with section 25 (4) of the Equal Status Acts 2000-2008, I conclude this investigation and issue the following decision. I find that a prima facie case of indirect discrimination has been established by the complainant on the grounds of age and I find that the respondent has failed to rebut the claim of discrimination. In considering the amount of redress to be awarded, I note that the complainant has not been denied access to the service itself and I am of the view that a high award is not appropriate. Additionally the respondent has made some attempts to rectify the complainant's particular situation. Therefore I award the complainant a sum of €500 as redress for the inconvenience caused.
5.2 More importantly, I also order, in accordance with Section 27 (1)(b) of the Acts, the respondent to review its policy, in terms of the requirement that holders of Free Travel Passes may obtain their ticket only on the day of travel, in order to ensure that this policy is in full compliance with the Equal Status Acts 2000-2008. I further order that this review be completed within 6 months of the date of this decision.
5.3 In addition to this policy review, I recommend that the respondent should immediately update its website to communicate clearly to Senior Citizens, Disabled Passengers and other members of the Free Travel Pass Scheme comprehensive details about their entitlements and obligations as passengers.
Elaine Cassidy,
Equality Officer
29 October 2010