THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision DEC-S2011-017
PARTIES
Ann Smyth
and
Dublin Bus - Bus Átha Cliath
(Represented by Mr. Colm Costello,
Solicitor, Córas Iompair Éireann)
File Reference: ES/2009/057
Date of Issue: 27th April, 2011
Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2011-017
Ann Smyth
-v-
Dublin Bus - Bus Átha Cliath
(Represented by Mr. Colm Costello, Solicitor,
Córas Iompair Éireann)
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) - Age Ground, Section 3(2)(f) - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1) - Harassment, Section 11 - Victimisation, Section 3(2)(j)
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 13th May, 2009 under the Equal Status Acts, 2000 to 2008. On 26th January, 2011, in accordance with his powers under section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 to 2008 on which date my investigation commenced. As required by section 25(1) and as part of my investigation, I proceeded to hearing on 31st March, 2011.
Dispute
1.1 The complainant claims that she was discriminated against by the respondent on the grounds of her age and disability in terms of sections 3(1), 3(2)(f), 3(2)(g) of the Equal Status Acts, 2000 to 2008 in terms of the manner in which she was treated when she sought to board a bus service provided by the respondent contrary to section 5(1) of the Equal Status Acts, 2000 to 2008. The complainant also claims that she was subjected to harassment and victimisation by the respondent in terms of sections 11(5) and 3(2)(j) of the Equal Status Acts, 2000 to 2008 when she sought to board a bus service provided by the respondent on this occasion.
Summary of the Complainant's Case
2.1 The complainant, who is visually impaired, lost the sight in her right eye in 2004 and also has poor vision in her left eye. The complainant stated that the discriminatory treatment in the present case occurred when she attempted to board the Number 16 bus service operated by the respondent at a bus-stop in Aungier Street on 11th February, 2009. The complainant stated that the incident occurred at approx 6 p.m. and that there was a long queue of people ahead of her when the bus pulled up at the bus stop. The complainant stated she thought that she had the appropriate fare of €1.60 in her coat pocket upon boarding the bus; however, when she put her hand into her pocket to retrieve the money for the fare she could only find a 10 cent coin and a 50 cent coin but she could not immediately find the €1 coin. The complainant stated that she placed the 10 cent and 50 cent coins into the payment slot and attempted to open her purse in order to search for the remainder of the fare. The complainant stated that she was carrying two shopping bags and she picked up several coins from her purse and held one or two of the up to the light (because of her visual impairment) to establish their denomination. The complainant stated that the bus driver shouted at her very loudly that "you are fumbling around there" and "you are holding up the whole bus".
2.2 The complainant stated that she felt embarrassed and humiliated by the reaction of the bus driver and she quickly found a €2 coin and inserted it into the fare payment slot. The complainant stated that the driver then proceeded to give her a ticket and change of 40 cents at which stage she informed him that she had already put 60 cents into the payment slot. The complainant stated that the driver responded that "I did not see you pay the 60 cents" and she claims that his use of the word "see" was a sarcastic reference to her visual impairment. The complainant stated that she felt mortified, humiliated, degraded and embarrassed and upon taking the ticket from the bus driver she informed him that "I'm not that far off old age pension age" to which he replied "I am very happy for you". The complainant claims that this remark amounted to discrimination and harassment on the grounds of her age. The complainant stated that the bus was full with passengers and that the bus driver did not speak to any of the other passengers in a similar manner or tone during the course of her journey.
2.3 The complainant stated that when she was about to disembark from the bus she approached the bus driver and complained about the manner in which he had shouted at her when she was boarding the bus and informed him that she was partially sighted. The complainant informed the bus driver that he would be hearing more about the matter and she asked for his name. The complainant stated that the bus driver did not provide his name but gave his driver number and said "thank you very much". The complainant submitted that the manner in which she was spoken to by the bus driver on this occasion amounted to harassment on the grounds of her age and disability within the meaning of section 11 of the Acts. The complainant also claims that this treatment amounted to discrimination and victimisation on the grounds of her age and disability on the basis that she had been singled out for this treatment by the bus driver and that no other passenger was subjected to such treatment during the course of the journey.
Summary of the Respondent's Case
3.1 Mr. A, who is employed by the respondent as a bus driver, stated that he was driving the Number 16 bus on 11th February, 2009 and he remembers the complainant boarding the bus at a bus stop on Aungier Street at around 6 p.m. Mr. A stated that the complainant having boarded the bus identified her intended destination and he informed her that the appropriate fare was €1.60. Mr. A stated that the complainant did not have the correct fare ready upon boarding the bus and she took out her purse to search for the correct fare. Mr. A stated that the bus was full of passengers at that time of the evening and given that there was heavy traffic outside and the fact that the security screen was up, it is possible that he would have had to raise his voice when communicating with passengers in order to be heard. However, Mr. A denied that he shouted at the complainant or spoke to her in the manner alleged and he stated that he was not aware that she had a disability until the complainant informed him when she was searching for the correct fare that she should have a bus pass. Mr. A stated that upon hearing this comment he replied to the complainant in a jovial manner that she wouldn't need to pay the fare if she had a bus pass.
3.2 Mr. A stated that the complainant boarded the bus without any difficulty and he did not have any further interaction with her on this occasion until she was disembarking at her intended destination when she approached him and remarked that she was not happy. Mr. A stated that the complainant asked for his name and he informed her that he wasn't obliged to provide this information to passengers but he provided the complainant with details of his driver number. Mr. A stated that he did not engage with, or question, the complainant as to the reason why she was not happy. Mr. A stated that the complainant disembarked from the bus at that juncture and he did not hear anything further in relation to this matter until he was interviewed by his manager on foot of a complaint which the complainant had made in relation to the alleged incident. Mr. A denied that he made any derogatory or inappropriate comments regarding the complainant's age or disability during the course of his interaction with her on this occasion.
3.3 The respondent submitted that all of its bus drivers (including Mr. A) have been provided with extensive training in relation to the appropriate procedures for dealing with disabled passengers and that the company does its utmost to ensure that its employees are aware of the needs of people with disabilities. The respondent denies that the complainant was subjected to discrimination, harassment or victimisation on the grounds of her age or disability within the meaning of the Equal Status Acts in relation to the manner in which she was treated by the bus driver on 11th February, 2009.
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 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to 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, made to me by the parties to the case. I will now proceed to examine the complaint on each of the grounds claimed.
Discriminatory Treatment - Disability Ground and Age Grounds
4.2 In the present case, the complainant has a visual impairment and I am therefore satisfied that she is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. The complainant has claimed that she was discriminated against by the respondent on the grounds of her disability and age in terms of the manner in which she was treated by the bus driver when she boarded the Number 16 bus at Aungier Street on 11th February, 2009. The complainant claims that the bus driver shouted loudly at her as she attempted to find the appropriate fare after she had boarded the bus and that he made a number of discriminatory comments regarding her disability and age which were totally inappropriate and unacceptable in the circumstances. The complainant claims that this treatment amounted to discrimination as none of the other passengers (i.e. those without a disability or those who were younger than her) were subjected to such treatment on this occasion. The respondent denies that it discriminated against the complainant on the grounds of her disability or age and it claims that she was not treated any less favourably than any other passenger who availed of its bus services on the date in question. Therefore, the issue that I must address in the present case is whether or not the complainant was subjected to less favourable treatment on the grounds of her disability and age in terms of the manner in which she was treated by the bus driver on this occasion.
4.3 In considering this issue, I note that it was not in dispute between the parties that the complainant was, in fact, afforded access to the bus service which was being provided by the respondent on the date in question. The actual issue that is in dispute between the parties relates to the nature of the interaction that took place between the complainant and the bus driver when she attempted to pay the bus fare after she had actually boarded the bus on this occasion. I note that the bus driver, Mr. A, accepts that the complainant did not have the appropriate fare ready after she boarded the bus on this occasion and that there was a brief exchange of words between them whilst she attempted to search for the fare in her purse. The complainant claims that Mr. A shouted loudly at her and made inappropriate and discriminatory comments regarding her age and disability during the course of this interaction. However, Mr. A emphatically denied during the course of his evidence that that he shouted at the complainant or made any inappropriate comments in relation to her disability. Furthermore, Mr. A denied that he was aware that the complainant had a disability and he claims that it was only when the complainant mentioned to him that she should have a bus pass because of her visual impairment that he became aware she had a disability.
4.4 Having regard to the evidence adduced, I have found Mr. A to be a very credible witness and, on the balance, I am satisfied that his evidence represents a more accurate account of the interaction that he had with the complainant on this occasion. I accept Mr. A's evidence that it was not immediately apparent to him that the complainant had a disability and that he only became aware of this fact after the complainant had informed him that she was visually impaired. I have taken into consideration Mr. A's evidence that the operational environment within which the interaction with the complainant took place on this occasion was very noisy and I note his acceptance that he may have raised his voice in order to be heard when he was conversing with the complainant. However, I am satisfied that Mr. A did not make any discriminatory comments or remarks to the complainant regarding her disability or age during the course of his interaction with her on this occasion. In coming to this conclusion I have taken into consideration that Mr. A's oral evidence was consistent with the account of events that he provided during the respondent's internal investigation into the complaint which was conducted in April, 2009 (a copy of which was submitted into evidence by the respondent). This is in contrast to the evidence adduced by the complainant whereby there were a number of inconsistencies between the account of the incident which she provided on the ES.1 Form and the subsequent correspondence and oral evidence she provided to the Tribunal. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of her disability and age contrary to section 5(1) of the Equal Status Acts.
Harassment
4.5 The complainant also claims that she was subjected to harassment by the respondent contrary to the provisions of the Equal Status Acts, 2000 to 2008 in terms of the manner in which she was spoken to by the bus driver, Mr. A, on 11th February, 2009. Harassment is defined in Section 11(5) of the Acts in the following terms:
"(a)(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds and being conduct which ... has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".
Therefore, in order to raise an inference of harassment within the meaning of the Equal Status Acts, 2000 to 2008 it is necessary that the unwanted conduct be related to one of the discriminatory grounds i.e. the disability and age grounds in the present case. The complainant has claimed that the bus driver, Mr. A, shouted loudly at her and made inappropriate comments of a discriminatory nature in relation to her disability and age when she attempted to pay the fare after boarding the bus which had the effect of making her feel mortified, humiliated, degraded and embarrassed. The complainant stated that Mr. A shouted very loudly at her "that you are fumbling around there and you are holding up the whole bus" and "I did not see you pay the 60 cents" which she claims were direct references to her visual impairment and that when she informed him that "I'm not that far off old age pension age" the bus driver, Mr. A replied "I am very happy for you" which she claims was a direct reference to her age.
4.6 As I have already stated above, I have found Mr. A to be a very credible witness and, on balance, I am satisfied that his evidence represents a more accurate account of the interaction that he had with the complainant on this occasion. I accept his evidence that he did not make any inappropriate remarks or comments to the complainant in relation to her disability or age which could be construed as harassment within the meaning of the Equal Status Acts during the course of their interaction on the date in question. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of section 11(5) of the Equal Status Acts, 2000 to 2008.
Victimisation
4.7 The complainant has also claimed that she was subjected to victimisation by the respondent in terms of the manner, in which she was treated by the bus driver on 11th February, 2009. Having regard to the evidence adduced, I find that I have not been presented with any evidence from which I could conclude that the complainant has been subjected to victimisation within the meaning of Section 3(2)(j) of the Equal Status Acts, 2000 to 2008. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the victimisation ground.
Decision
5.1 In accordance with section 25(4) of the Equal Status Acts, 2000 to 2008, 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 and age grounds in terms of sections 3(1), 3(2)(f), 3(2)(g) and contrary to section 5(1) of the Equal Status Acts.
the complainant has failed to establish a prima facie of harassment contrary to section 11(5) of the Equal Status Acts.
the complainant has failed to establish a prima facie case of victimisation contrary to section 3(2)(j) of the Equal Status Acts.
Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
27th April, 2011