THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-066
PARTIES
Michelle Duff
(represented by Michael Block, B.L.,
instructed by Cullen & Co., solicitors)
-v-
Dublin Bus
(represented by Cathy Maguire, B.L.)
File Reference: ES/2010/085
Date of Issue: 22nd December, 2011
Equal Status Acts
Decision No. DEC-S2011-066
Michelle Duff
-v-
Dublin Bus
Key words
Equal Status Acts - Section 3(2)(c), Family Status - Pram on bus - Section 42(3), reasonable steps to prevent discrimination taking place
1. Delegation under the relevant legislation
1.1. On 20th August, 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th August, 2011, in accordance with his powers under section 75 of the Employment Equality Acts and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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 which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 15th November, 2011. Further documentation was sought from the respondent and final correspondence in this respect was received on 29th November, 2011.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Family Status ground contrary to the Equal Status Acts in terms of Sections 3(1) and 3(2)(c) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that she was refused service by the respondent because she sought to bring her pram on a particular bus.
3. Summary of the Complainant's case
Summary of evidence of Complainant
3.1. The complainant stated that, on 6th March, 2010, at the respondent's Liffey Valley terminus, she approached a bus that was being driven by Driver A. She said that she was with her baby daughter, her sister (Ms B) and her sister's son at the time. She said that Driver A told her to get the bus behind. She said that she suggested she would fold her pram and did so. She said that she then got on the bus and stored the pram in the middle doors. She said that when she then went to pay the bus fare the driver would not give her a ticket and told her that he was not driving the bus with her on it. She said that he told her he was not going to bring her on the bus "because she was a crazy woman". She said that he said this because she had brought a pram onto the bus. She said that he then said "fuck off" and "fuck you" and pulled down his protective window.
3.2. The complainant said that her sister's boyfriend, Mr C, who was also "a member" of CIE, then arrived on the scene. She said that he asked Driver A for his driver (identification) number but he refused to give it to him. She said that when the Gardai arrived they approached her first and said they would find out what was going on with the driver. She said that they were telling the bus driver to calm down. She said that they asked Driver A to drive the bus but that he refused to do so as long as she was on it. She denied abusing Driver A.
Summary of evidence of Ms B
3.3. Ms B was also present at the hearing. She said that when she went to get on the bus Driver A told the complainant to get onto the next bus with the buggy. However, she said that the complainant took the buggy on Driver A's bus. She said that Driver A then became abusive when the complainant went to pay the bus fare. She said that she could hear him saying "fuck you" and "fuck off". She said that she then rang Mr C and he told them to stay on the bus till he got there.
Summary of evidence of Mr C
3.4. Mr C was also present at the hearing. He stated that he was called by his partner, Ms B, who told him that Driver A was attempting to get the complainant off the bus. He said that he arrived and spoke with Driver A and told him he was a member of staff of CIE also. He said that Driver A told him he was afraid and so he showed him his I.D. and staff pass. He said that Driver A then told him to "fuck off" and that this was followed by "abuse after abuse". He said that he was trying to talk to him calmly but that "he was having none of it". He said that he spoke with the Gardai when they arrived.
Summary of evidence of Garda D
3.5. Garda D gave evidence that she was called to the scene and when she got on the bus she met with Driver A. She said that he was quite irate. She said that she asked him to calm down to get his story. She said that he said he was not going any further with the bus and when she asked him why he mentioned the use of a buggy and children. She said that she couldn't say exactly what he said in that respect as, even with her training in dealing with such situations, he was so irate that she couldn't get "any real sense out of him". She said that he was shouting but could not say "100%" that he was swearing. She said that she would not have got on that bus as a member of the public in that context.
3.6. Garda D said that the complainant approached her and she took her details. She said that another gentleman had come along who said he was also a CIE employee. She said that he told her that Driver A had refused to give him his driver number. She said that the driver also refused to give her his name or driver number. She said that everyone then got off Driver A's bus and got onto the following bus.
General Submissions
3.7. With respect to the CCTV footage that was viewed at the hearing, the complainant stated that it showed that she had not tried to get her pram on the bus unfolded. She said that it also showed that she had tried to get a ticket but wasn't given one by Driver A. She said that the speed of the footage was too slow to show that the conversation was animated, as claimed by the respondent. Although acknowledging that the footage did not show all of Driver A's physical features in this respect, she said that the way in which he pulled down his driver window in speaking to her was not consistent with someone who was in fear.
3.8. With respect to the respondent's submission in relation to the defence provided in s. 42(3) of the Acts, the complainant stated that it had not provided any documentary evidence in this respect before the hearing. Equally, she submitted that the documents it provided after the hearing were, inter alia, inconsistent with the oral evidence given by the respondent at the hearing and did not show that Driver A had completed all of the training it was alleged had been provided to him in that respect. She also said that a number of complaints had also been made against Driver A. In that respect, she said that "one wonders" about the effectiveness of the respondent's training regime.
3.9. The complainant stated that the details of the alleged abuse of Driver A by her were not in the respondent's submission provided in advance of the hearing, nor were they referred to in the accident report completed by Driver A after the incident in question. She submitted that, in that context, its submission that what sparked the incident in question was a "sideways" comment the complainant made when getting on the bus in question was not credible. She also said that the fact that there were other prams on the bus was irrelevant as Driver A was already refusing to drive the bus because the complainant had a pram with her.
3.10. In general, the complainant submitted that the refusal of service to her by Driver A was based on the fact that she was with her baby daughter in a pram. She said that the evidence presented by her, and particular that of Garda D, was more credible than that of the respondent in that respect. The complainant submitted that she had established a prima facie case that she had been discriminated against by the respondent on the family status ground in that context. She referred to caselaw to support her claim in this respect, including Maughan -v- The Glimmer Man and Barry -v- Richardson's Pub .
4. Summary of the Respondent's case
Evidence of Driver A
4.1. Driver A, who was present at the hearing, said that he had been driving with the respondent since 2007. He said that, on the day in question, he saw the complainant coming with her pram and, when she got to the bus, he said that she attempted to get on the bus with the pram unfolded. He said that he told her that she could get the following bus as his bus could not take unfolded prams. He said that she was saying something as she was outside the bus, but she eventually folded up the pram and got on the bus. He said that she said something abusive to him as she was passing him on her way to the back of the bus. He said that she then threw her money into the box (for payment) and became very abusive and called him a "fucking black bastard". He said that, at that point, he said he had nothing to say to her and told her that he would report the incident.
4.2. Driver A said that he then called his control operator to ring for the Gardai and pulled up his protective window to wait their arrival. He said that, when the Gardai arrived, he pointed the complainant out to them and told them that she was the woman he had complained about. He said that he told them what she had said to him. He said that they asked him to drive the bus but that he replied that he would not do so while the complainant was on the bus for safety reasons. He denied that he swore or was abusive to the complainant or to anyone else.
4.3. Driver A stated that the type of bus he was driving on the day in question can only take buggies that are folded up. He said that his practice was to permit buggies on the type of bus in question when they are folded and that this was in line with the policy of the respondent in that respect. He added that this was the background to his statement to the complainant that she could get the bus following, which could take unfolded prams. He said that he was trying to be helpful in that respect as "some mums with bags" have difficulties in getting on the bus if they have to fold up their pram. He added that there were other passengers on the bus who had prams with them. He said that he did not say anything to them as they did not try to bring their pram on while it was unfolded. He said that he refused to drive the bus because the complainant had been abusive to him and not because of the pram.
4.4. Driver A said that he had not put the details of the alleged abuse of him by the complainant in the accident report form he filed with the respondent because he did not want to "press charges". He said that he wrote only that she was abusive and that it was impolite to put the exact words she used in that context. He said he did not tell the Gardai about the abuse either because they did not ask him what he said and asked only that he point the complainant out to them. He said that the incident was investigated by the respondent. He said that he was not sanctioned by the respondent but that he was told that there was a better way to deal with customers. He confirmed that two other complaints had been made against him but he was not sanctioned with respect to either of those incidents, although he was told with respect to one of those complaints that he should not do it again.
General Submissions
4.5. With respect to the CCTV footage, the respondent stated that it showed that the complainant had tried to get the pram on the bus unfolded. It said that she spoke to the driver before she stowed the buggy. It said that Driver A's account of the complainant insulting him as she got on the bus was not inconsistent with the CCTV footage in that context. It also said that their conversation was clearly "animated" and the timing and way in which he pulled up his protective window was consistent with Driver A's account of their conversation.
4.6. The respondent agreed that this case turned on the facts. It stated that even if the Tribunal were to find against them on the facts, s.42(3) of the Acts applied with respect to it as it had taken such steps as were reasonably practical to prevent Driver A from doing the alleged acts or from doing in the course of his employment acts of that description. It submitted in this respect that it trains its drivers in how to deal correctly and politely with customers. It outlined the relevant training it provided to those drivers, and in particular to Driver A, and provided documentary evidence of same to the Tribunal after the hearing. It said that none of the complaints against Driver A were upheld. It added that Driver A had received positive reports from its inspections of him and provided documentary evidence in that respect to the Tribunal.
4.7. In summary, the respondent said that Driver A's account of what took place was consistent and that he had stated in his accident report that the complainant had been abusive. It said that Driver A had allowed the complainant on the bus with her pram but then refused to drive the bus because she was abusive to him. It said that this was clearly unrelated to the presence of the pram on the bus. It added that there were other women with prams on the bus. It stated that s.42(3) of the Acts applied in any event and it was entitled to avail of that defence were the Tribunal to find against it on the facts of the case. It referred to caselaw to support these submissions including Campbell -v- Bus Eireann .
5. Conclusions of the Equality Officer
5.1. 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. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. It is clear that the complainant was allowed to bring her pram on board the bus. However, it is equally clear that Driver A refused to drive the bus with the complainant on it. The key question in this case, then, is whether this refusal of service to the complainant by Driver A was related to the fact that she had a pram with her on board the bus.
5.3. It is clear that, at least prior to the arrival of the Gardai, Driver A did not raise any issue with the complainant bringing the pram on the bus, except to say that she would have to fold the pram up to bring it on that particular bus and to suggest that she might prefer to get the bus that was following. I am satisfied that he did so in accordance with the general customer service policy of the respondent. I am also satisfied that, once the complainant started to fold up the pram to get on the bus, there was no further mention of the pram until Driver A said something to Garda D about it. I note that Garda D stated that she could not be clear what he was saying in that respect.
5.4. I also note that it is clear, including from the CCTV footage provided to the Tribunal by the parties, that there was at least one other woman who boarded the bus with a pram. The complainant submitted that this was not relevant as the driver was already refusing to drive the bus because the complainant had a pram on board. However, I consider that it must follow from the general submissions of the complainant with respect to this complaint that Driver A would have raised an issue with any person who sought to bring a pram on board the bus. It is quite clear that he did not do so.
5.5. It is clear that the respondent's policy was to allow anyone bring a pram on board the type of bus in question provided it was folded up. If, as alleged, Driver A had an issue with people boarding buses he was driving when they had any prams with them, this approach was clearly in conflict with this policy. In such circumstances, I also find it inconceivable that such an approach would not have generated other complaints against Driver A.
5.6. In any event, it is clear that the reason why Driver A refused to drive the bus with the complainant on board is because a serious dispute arose between himself and the complainant when one of them took exception to the other being abusive towards them. I am not satisfied that any of this abuse related to the pram or was in any other way related to the complainant's family status. In that context, whether Driver A was abusive towards the complainant, or the complainant was abusive towards Driver A, or whether both were abusive to each other, is irrelevant to the complaint before me.
5.7. In all the circumstances of the present complaint, then, I am not satisfied that the refusal of Driver A to drive the bus while the complainant was on board was related to the fact that she had boarded the bus with a pram, or that her treatment by Driver A was in any way related to the fact that she sought to board the bus with a pram. Therefore, the complainant has failed to establish a prima facie case of discrimination on the family status ground in that respect. In that context, I do not need to give any further consideration to the matter.
6. Decision
6.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts:
6.2. I find that the complainant has failed to establish a prima facie case of discrimination of her by the respondent on the Family Status ground in terms of Sections 3(1)(a), 3(2)(c) and Section 5(1) of the Equal Status Acts.
6.3. The complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
22nd December, 2011