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-S2011-006
A Bus Customer
(represented by Kent Carthy Solicitors)
v.
A Bus Company
(represented by Hugh Hannon Solicitor)
File Reference: ES/2009/102
Date of Issue: 15th February 2011
Decision
DEC-S2011-006
A Bus Customer
(Represented by Kent Carthy Solicitors)
v.
A Bus Company
(represented by Hugh Hannon Solicitor)
Key words
Equal Status Act, 2000 - 2008, Direct discrimination, Section 3(1) - - less favourable treatment - Disability, 3(2)(g) - refusal to provide a service, Section 5(1), prima facie case.
Delegation under Equal Status Acts, 2000-2008
The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Act 2000-2008 on the 21st September 2009. On the 18th of November 2010, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 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. On this date my investigation commenced. A submission was received from the complainant on the 8th of April 2010 and from the respondent on 25th May 2010. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on the 4th of February 2011.
1. Dispute
1.1 The dispute concerns a claim by the complainant that he was discriminated against on the disability ground when a bus driver refused to allow him to board the bus. The complainant alleges that the respondent discriminated against him in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status and contrary to Section 5(1) of that Act.
2 Complainant's Case
2.1 The complainant submitted that he suffers from Parkinson's disease which affects his movement and in particular the way he walks. He said that he usually travels by bus in and out of Dublin city on a Sunday evening to meet friends in a pub. On Sunday the 19th of July 2009 at approximately 10pm he walked down Amien Street with the intention of getting a bus home. As he walked towards the bus stop he crashed into a pole causing a minor cut to his nose/forehead. When he attempted to board the bus the driver said to him that he was not allowing him on board. He closed the door and drove away. The complainant said that the driver made no attempt to find out about his condition or why his movements were impaired or why he had an injury. As a result the complainant had to get a taxi home. He said that there were a number of people at the bus stop when the bus pulled up and they boarded the bus ahead of him. He was at the back of the queue. He believes that the driver had time to observe him before tried to board and he submits that the driver concluded because he walks with a shuffle and had blood on his forehead that he was involved in some incident and was not a desirable person to get on the bus. He said that he felt humiliated at the way he was treated. The complainant said that while he still travels on Sunday into the city centre by bus he always gets a taxi home.
2.2 The complainant's friend stated that he met the complainant in the pub on the night in question. He said that the complainant consumed very little alcohol and he knew he was taking a bus home.
3 Respondent's Case
3.1 The respondent denies that the complainant was discriminated against. Following receipt of the complaint, Dublin Bus carried out an investigation. They interviewed 2 drivers and they did not recall any incident with a customer on the night in question. The company submitted that it could be a case of poor communication rather than discrimination.
3.2 They submitted that the company does its utmost to ensure that its employee' are aware of the needs of people with disabilities. The company's Accessibility Officer stated that all drivers are trained every year on customer care, accessibility and disability awareness. The company has ongoing internal awareness campaigns which includes awareness of the needs of customers with disabilities. They also run a customer focus program, where they consult with members of different disability agencies to get feedback on their services. They also have a travel assistance service which is available to customers with disabilities. The drivers are trained not to rush people at bus stops given that some customers have disabilities. She said that the drivers are instructed and trained to take all passengers. The company has an understanding with the Gardaí that they will take people on to the bus and out of the city centre regardless of their condition
4. Conclusion of Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against contrary to Section 3(1)(a) and 3(2)(g) of the Equal Status Act and in terms of Section 5 (1) of that 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.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. 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," and Section
5. -- (1) provides: " A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public".
The burden of proof is set out in Section 38A which provides:
38A. -- (1)" 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."
4.2 A person making an allegation of discrimination under the Equal Status Acts, must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.3 The complainant submits that he was discriminated against on the grounds of his disability when he was refused permission by the driver to board the bus. The respondent's case is that they investigated the complaint with the 2 drivers on duty and both denied that any incident occurred. They also submit that the incident could not have happened because the drivers are trained and are instructed not to refuse to take passengers.
4.4 I am satisfied that the complainant has a disability and is covered by the Equal Status Acts. The next matter for consideration is whether he was refused access to a service contrary to Section 5(1). I note that the complainant's witness verified that he met with him for a social occasion on Sunday 19th of July and the complainant left to take a bus home. Likewise I note that the complainant has a free Travel Pass. I am satisfied therefore that the complainant was in the city centre on the 19th of July 2009 and it was his intention to travel home by bus.
4.5 I found the evidence presented by the complainant very credible and I have concluded, therefore, that the complainant was refused permission to board the bus on the night in question. The respondent believes that there could have been a misunderstanding with the bus driver. I cannot accept this explanation given the complainant's evidence is that he had no opportunity to engage with the driver because of the speed which he appears to have closed the door and drove away from the bus stop. The complainant has a disability which impacts on his mobility and movements. He said he walks with a shuffle and that his movements are slow. He also had blood on his forehead following a fall against a pole. I note that a number of other passengers boarded the bus ahead of the complainant and I am of the view that the bus driver had an opportunity while this was happening to observe the complainant and decided not to let him board. I believe that this decision was made for reasons connected to his disability. I find therefore that the complainant was treated less favourably than another person without a disability or a person with a different disability was treated or would have been treated in similar circumstances. I find that the complainant has established a prima facie case of discriminatory treatment which the respondent has failed to rebut.
5. Decision
5.1 I find that the complainant was discriminated against on the disability ground contrary to the Equal Status Acts. Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) provides that:
"the types of redress for which a decision of the Director under section 25 may provide are either or both of the following as may be appropriate in the circumstances:
(a) an order for compensation for the effects of the discrimination;
or
(b) an order that a person or persons specified in the order take a course of action which is so specified."
5.2 Under the above Section the maximum amount of compensation I can award is €6,349. In considering the amount of compensation that I should award I have taken into account the effects of the discrimination had on the complainant. The complainant said that he felt humiliated by the refusal and had to take a taxi home on the night. I note the complainant no longer takes the bus home following his Sunday night social gathering. Taking these matters into consideration, I order the respondent to pay to the complainant the sum of €1,250 (one thousand two hundred and fifty euro) to compensate him for the distress and humiliation experienced by him as well as the loss of the amenity to him.
___________________
Marian Duffy
Equality Officer
15th February 2011