THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000-2008
Decision No. DEC-S2011-023
Corina Duyn
(represented by Siobhan Phelan B.L. instructed by Durkan Solicitors)
-v-
Aer Arann Group
(represented by Doireann Ni Mhuircheataigh B.L. instructed by CCK Law firm)
File Reference: ES/2011/0010
Date of Issue: 27th June 2011
Key words
Equal Status Acts - Section 3(2)(g) Disability - Persons with restricted mobility (PRM), Reasonable accommodation, victimisation, harassment.
1. Delegation under the relevant legislation
1.1 This case concerns a complaint by Ms Corina Duyn that she was discriminated against by Aer Arann on the grounds of disability and that she was not provided with reasonable accommodation. She also claims harassment and victimisation within the meaning of the Acts. On 20th January 2010, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 -2008 [hereinafter referred to as 'the Acts']. On 28th October 2010, in accordance with his powers under section 75 of the Employment Equality Acts 1998 -2008 and under the Acts the Director delegated the case to me, Orlaith Mannion, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. My investigation commenced on this date.
1.2 As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 20th January. The last piece of correspondence relevant to the investigation was received on 24th February.
2 Summary of the Complainant's Case
2.1 The complainant submits she is a person of reduced mobility requiring the use of a mobility scooter and is therefore a person with a disability within the meaning of the Acts. On or about 28th June 2009 the complainant booked a flight with Aer Arann from Cork to Edinburgh for the 26th August 2009. Ms Duyn is an author of children's books and she was going to Edinburgh on business - to attend the Book Festival there. She submits it is the leading festival regarding books for young people and is a valuable networking opportunity. When booking the ticket online the complainant noted that the respondent's website indicated that passengers with reduced mobility ought to contact them one week prior to departure to discuss their requirements. She noted this in her diary and the complainant proceeded to contact the respondent by phone using the number on the website on 19th August to state that she would be travelling with her mobility scooter on 26th August. She submits that she indicated to the agent that her Rio3lite scooter was powered with a battery classified as a non-spillable battery which is compliant with the International Air Transport Association (IATA) standards.
2.2 On the day of travel (26th August 2009) she checked in at Cork Airport an hour prior to departure. Her luggage was checked in but half an hour later she was called back to the check-in desk and further questions were asked about the type of battery in her mobility scooter. She submits that she gave the agent a copy of a battery notice by the manufacturer which confirmed the battery's compliance with IATA regulations (Packing instruction 806, Special provision A67). The Servisair employee (Servisair acts as ground agents for the respondent at Cork airport) notified Aer Arann. The battery was removed from the mobility scooter and examined. This was easily done as it was a sealed unit with no externally exposed wires. The complainant observed that the Servisair agent noted the sticker on the form of the battery which stated "Non spillable battery - complies with IATA special provision A67" The complainant proceeded to the departure lounge but as everything seemed to be in order. As people were beginning to board, she was approached by a Servisair employee who told that Aer Arann do not carry those type of batteries. She maintains that she felt embarrassed and distressed at being singled out as others were boarding the plane. Although polite, she said the agent told her 'No you are not going on that plane, we are leaving without you, and your case has been removed from the plane'. She states that she felt like a criminal. In direct evidence she submitted that 'it felt as if it was no longer about the battery, it was about her'.
2.3 She submits that she was forced to cancel all appointments in Edinburgh and had to ask her partner to return to airport to bring her home. She submits that her confidence in her ability to travel independently by air, as a person with a disability, has been badly damaged because of the incident. She admits that she flew with Aer Arann again (6th May 2010) but she used her manual wheelchair which made her much more dependent on other people as she required them to push her wheelchair.
2.4 She subsequently pursued the matter with Aer Arann Customer Relations and was subsequently given a refund. She submits that she was disappointed the apology was limited to 'any inconvenience caused'.
2.5 The complainant submits that she was directly discriminated against as she was treated less favourably than able-bodied persons who had booked tickets for this flight. Ms Duyn further submits that she was not accorded reasonable accommodation within the meaning of Section 4(1) of the Acts. The complainant contends that the respondent is a provider of services both directly and through its agents Servisair within the meaning of the Acts.
2.6 Ms Duyn maintains her battery complied with international regulations as the battery terminals were protected from short circuits, being a sealed unit, and the battery was securely attached to her mobility aid.
2.7 Ms Duyn states that she fully appreciates while passenger safety concerns must be given due consideration, she submits the respondent cannot claim that its discriminatory company policy takes precedent over the regulation of an international standardisation body. She states that a sticker on the front of her battery clearly stated 'Non-spillable battery - complies with IATA Special Provision A67'.
2.8 The complainant submits that she was harassed within the meaning of Section 11(5) of the Acts as she was distressed when she was singled out form other passengers as they were beginning to board.
2.9 She submits that the respondent discriminated against the complainant by
(i) Failing to notify her when she contacted their customer service agent one week prior to travel that thereby would be a difficulty in transporting her mobility scooter due to the type of battery upon which it operated
(ii) Failing to highlight to the complainant that there was incongruence between IATA standards and company policy
(iii) In depriving her of the opportunity to render my mobility scooter compliant with said policy in order to ensure that she could travel with the respondent and/or make alternative arrangements
(iv) In definitively indicating to her at the last minute at the boarding gate that she would be unable to travel with her mobility scooter.
2.10 The 50th edition of the IATA Dangerous Goods Regulations, which was the edition effective when she sought to travel with the respondent states in section 2.3.2.2: 9
Wheelchairs/Mobility Aids with non-spillable batteries
Wheelchairs or other battery-powered mobility aids with non-spillable batteries (see Packing Instruction 806 and Special Provision A67) provided that the battery terminals are protected from short circuits, e.g. by being enclosed within a battery container, and the battery is securely attached to the wheelchair or mobility aid.
Operators must ensure that wheelchairs or other batter-powered mobility aids are carried in such a manner so as to prevent unintentional operation and that the wheelchair/mobility aid is protected from being damaged by the movement of baggage, mail, stores or cargo.
2.11. She submits that it should have been capable of transportation by an airline in accordance with IATA regulations as it complied with Special Provision A67 and Packing Instruction 806. She submits that a copy of her battery notice stating this was shown to the respondent at the airport.
2.12 The complainant submits that her scooter is a common brand and that one of the reasons she picked it, following extensive research, is that she could bring it with her on an aeroplane. Other airlines routinely allow carriage of this type of battery. She gave examples of airlines that specifically state on their website that batteries for powering wheelchairs and mobility aids are allowed on their aircrafts e.g. British Airways, Continental Airlines, Jetairfly, Southwest and Virgin Atlantic. Ms Duyn had prior to this incident (November 2008) to this incident travelled with her mobility scooter to Amsterdam with Aer Lingus and encountered no difficulties.
2.13 She submits that the respondent victimised her by personalising her complaint and by continuing to refuse to allow her travel with her mobility scooter.
2.14 Regarding legal arguments, the complainant submits that a hypothetical comparator is allowed by the use of the phrase 'would be treated' in Section 3(1) of the Acts. The complainant further argues that she is not required to demonstrate that there was an intention to discriminate; it is sufficient that the actions of the respondent do, in fact, discriminate against the complainant as a person with a disability.
2.15 Furthermore, the complainant submits that she was not accorded reasonable accommodation in respect of her mobility needs within the meaning of Sections 4(1) of the Acts. She submits that a 'provider of a service' is defined in Section 4(6)(b) as including 'the person responsible for providing a service in respect of which section 5(1) applies'. Section 5(1) in turn states that 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 b a section of the public'.
2.16 The complainant maintains that the respondent was a provider of services to the complainant within the meaning of the Acts both directly and through its employees and/or agents Servisair. The complainant maintains that the fact that an agent was involved does not affect the respondent's liability. She refers to Ross v Ryanair Ltd & Stansted Airport Ltd. In that case the defendants were held to have discriminated against the plaintiff, a person of reduced mobility, in failing to ensure the provision of a wheelchair, without charge, thus enabling him to be transported from the check-in point to the departure desk. The plaintiff was dealing with an agent of Ryanair in this cited case Furthermore, Ryanair was found to have discriminated against the plaintiff despite the fact that it was found to be in compliance with terms and conditions of the contract which had been accepted by the plaintiff upon purchasing the ticket.
2.17 Regarding harassment, the complainant submits that she was extremely distressed and embarrassed to be singled out from the other passengers at the time of boarding the aircraft. Ms Duyn submits that she felt humiliated and as if she a criminal. She cites Kane and Kane v Eirjet (in liquidation). In that case, the complainant and her son who had Downs Syndrome were requested to vacate their allocated seats. While their complaint of discrimination on the ground of disability was not upheld, the Equality Officer found that the manner in which the request was handled by the cabin crew created an environment that was humiliating and degrading. Therefore, their complaint of harassment on the disability ground was upheld.
2.18 Regarding victimisation, the complainant pointed out her disability to the respondent a week before travel. However, it was only on the day that questions were asked about her mobility scooter battery. As in the case of Twomey v Aer Lingus the respondent strictly applied its policy by refusing the complainant permission to board the aircraft. She submits that she felt it was directed at her personally.
3 Summary of the Respondent's Case
3.1 The respondent is governed by Irish and European legislation along with international conventions on Air Law in all its operations. This includes the regulation of the carriage of articles and substances having hazardous properties which if uncontrolled could adversely affect the safety of the passengers, crew and/or aircraft on which they are carried. The respondent submits it places a premium on customer service and strives to accommodate the needs of all its passengers. Due to safety concerns, the respondent maintains it is not authorised to carry wet cell batteries on its flights including those powering mobility devices. This is because to do so requires compliance with strict technical instructions. To facilitate passengers of reduced mobility the respondent submits that this limitation is notified to passengers during the booking process and passenger of reduced mobility are required to contact the airline in advance of the flight to discuss their needs. The respondent provides assistance to passengers of reduced mobility free of charge.
3.2 The respondent regrets that the complainant was unable to travel with her mobility device on the date in question and any upset this caused her. The respondent submits that it carried out a thorough investigation of the complainant's complaint. The respondent's records show that the complainant made a phone call to the respondent on 19th August 2009 at 10:17 a.m. to discuss her needs. The respondent submits that the complainant stated to the agent that her mobility scooter contained a dry cell battery. Dry cell batteries do not pose a problem and can be carried on the respondent's flights. The respondent had no notice that the complainant's mobility scooter contained a battery prohibited for carriage on its aeroplanes and therefore was unable to arrange alternative wheelchair assistance in advance. The respondent submits that had the complainant correctly identified her battery as a wet cell battery she would have been advised that their procedures did not allow for carriage of such batteries. Aer Arann further submits that she would have been referred to the respondent's terms and conditions and advised that could not bring her mobility device on the flight. In such circumstances it is the practice of the respondent to make contact with the mobility device supplier at both airports to arrange supply of a mobility device.
3.3 At check-in on 26th August the respondent said it became apparent that her mobility scooter contained a wet cell battery. While the respondent acknowledged that, the complainant had some paperwork to say that her battery was approved by the International Air Transport Association as correspondent to Special Provision A67. However, the respondent submits that this does not cover the respondent's obligations pursuant to its Operating Manual which must be approved by the Irish Aviation Authority. The ground staff contacted to Dublin office to seek clarification as to whether they could carry the battery or not. They were informed by Operations in Dublin that they could not.
3.4 Once the situation was clarified, the staff informed the complainant. They offered to bring her on the next flight free of charge and that she would be offered the Meet-and-Assist service at Edinburgh airport. The complainant sought a refund which was made to her immediately. Subsequently the respondent forwarded to her the results of its investigation.
3.5 Annex 18 to the Convention on International Civil Aviation together with Technical Instructions for the Safe Transport of Dangerous Goods by Air are made binding on Irish operators by Aeronautic Nr 0.1 Issue 17 (now superseded by Issue 18) by the Irish Aviation Authority[IAA]. Annex 18 categorises battery fluid as a hazard. The Annex and the accompanying Technical Instructions allow for the carriage of batteries but stringent instructions must be followed. The respondent's Operating Procedures do not allow the carriage of wet cell batteries. Amendment of these operating procedures requires approval from the IAA. The respondent is also guided by the world aviation trade representative organisation, which is the International Air Transport Association [IATA] Dangerous Goods Regulations although these regulations are not binding.
3.6 S.I. 299 of 2008 European Communities (Rights of Disabled Persons and Persons with Reduced Mobility when travelling by Air Regulations) transposes EC 1107/2006. Article 4 of the Directive states that an air carrier or its agent may refused, on the grounds of disability or of reduced mobility to accept a reservation from or to embark a disabled person or a person with reduced mobility in order to meet applicable safety requirement established by international, Community or national law or in order to meet safety requirements established by the authority that issued the air operator's certificate to the air carrier concerned.
3.7 The respondent states that it was not the complainant that was refused carriage but battery in her mobility scooter.
3.8 S.I. 61 of 2006 Irish Aviation Authority (Operations) Order requires all operators of an air operator certificate to have an Operations Manual. Paragraph 9.3 of the Aer Arran Operations Manual states that for safety reasons wet cell batteries must not be carried in the passenger carriage or hold baggage. Paragraph 6.12 of the Aer Arann Ground Operations Manual states that 'any item containing a wet cell battery MUST NOT be loaded. (Dry cell batteries are ok for air travel).'
3.9 The respondent provides notice to passenger of reduced mobility regarding the prohibition on wet cell batteries in Article 15 of their terms and condition of carriage on their website. The complainant accepted their and conditions set out and is therefore bound by them.
3.10 Aer Arann submits that it carried of a full review of the policy of prohibiting wet cell batteries. This included a review of safety regulation in the airline industry, discussions with the Irish Aviation Authority regarding the necessary measures to be implemented if the current procedures were to be changed, consultation with Irish an other regional airlines as to their procedures and research into battery and wheelchair types. The respondents review revealed that meticulous adherence to the technical instructions is required to ensure safety. It submitted three examples of safety incidents regarding mobility devices. In 2008, the electric terminal of an electric wheelchair was not isolated before loading at Manchester airport; it burst into flames and damaged the baggage belt. In 2003, a non-spillable, sealed, lead-acid wheelchair battery leaked. In 1995, a wet cell battery, which was removed from an electric wheelchair, was removed and packaged separately but the battery cables were left attached to the battery causing a short circuit. The overheated battery boiled over releasing acid which was absorbed by the packaging material.
3.11 The respondent submits that to facilitate the carriage of wet cell batteries they will require additional technical training of all the ground staff and crew of the respondent airline and for its handling agents Servisair. To facilitate adhering to of strict procedures for checking and verifying battery type, compliance with packing instructions, It also would require the amendment of terms and conditions of carriage with the respondent as well as amendment of their Operations Manual. The respondent submits that it would have been impossible to carry out these required changes on the day the complainant wished to travel. The respondent maintains that making these changes are unduly onerous to the respondent, as it is it poses both an initial and ongoing financial burden on the respondent. To extend the reasonable accommodation to carry wet cell batteries is a disproportionate response to the needs of persons of reduced mobility to be facilitated on airlines.
3.12 The respondent denies either direct or indirect discrimination. Aer Arann submits its actions was prompted solely and exclusively by strict adhesion to safety regulation and the limitations on the respondent pursuant to its Air Operator's Certificate. To have allowed the complainant to board the aeroplane with a wet cell battery would have been to risk the safety of all the passengers and crew onboard including the complainant.
4 Conclusions of the Equality Officer
4.1 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. There are three issues for me to decide:
was the complainant discriminated against on the grounds of disability and was she discriminated by not being offered reasonable accommodation?
was the complainant harassed on the ground of disability?
was the complainant victimised within the meaning of the Acts?
Discrimination
4.2 First of all, I accept the complainant's contention (and this was not contested by the respondent) that Aer Arann is a provider of services within the meaning of the Acts and, therefore, the correct respondent in this case [See Paragraphs 2.6 and 2.7]. Dealing with the alleged discrimination in a chronological way, there are three relevant issues:
when the complainant rang on 19th August notifying the respondent that she was a person of reduced mobility and would require special assistance
when the complainant was refused boarding on 26th August
The respondent's ongoing policy regarding the refusal to carry the type battery contained in the mobility scooter used by the complainant.
4.3 Regarding (i), there is a conflict of evidence between the complainant and the respondent. The respondent submits that the complainant misrepresented her battery as a dry cell battery in her mobility scooter. In response, the complainant stated that it would not be in her interest to pretend her battery was anything other than what it was, as it would inevitably be examined at check-in. In their written submission, the respondent submitted a record of the phone call with the Aer Arann representative on 19th August:
Pax called to book on a wheelchair she has her own wheelchair it is a dry cell battery she also needs MAAS [Meet and Assist Service] and lift on lift off
I found the complainant to be a cogent and precise witness. In a situation where the representative had clearly misrecorded that the complainant would be using a wheelchair rather than mobility scooter and that her first name was incorrectly spelled as 'Cornelia', I find it hard to believe the respondent's version of events regarding the complainant incorrectly informing the respondent regarding the kind of battery used in the mobility device. On the balance of probabilities, I find the complainant's version to be the more compelling. The complainant fulfilled her obligations by informing the respondent that she intended using a mobility scooter and that the battery was compliant with international requirements. It was at this point that the representative should have checked the respondent's Ground Operations manual or consulted with a supervisor, whether the battery was compliant with their procedures. The respondent was remiss in not doing this and it had unfortunate consequences for Ms Duyn.
4.5 In relation to (ii), it is common case that the complainant was allowed check in on 26th August while Servisair staff checked with Aer Arann whether this battery in her mobility scooter was allowed on their flights. The complainant was approached at the airside boarding gate and was told her battery could not be carried. She did not travel on this flight which caused her some distress.
4.6 Aer Arann continues not to carry mobility scooters with this type of battery on their aeroplanes. Section 4(1) is the relevant provision regarding reasonable accommodation:
For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.
I am satisfied that the respondent failed to provide reasonable accommodation to Ms Duyn on 26th August and continues to refuse to provide same. I accept the complainant's contention that the respondent's continued refusal to carry the battery in her mobility scooter makes it unduly difficult for her to avail of its flight service. Without the use of her mobility scooter the complainant is obliged to use a manual wheelchair requiring somebody else to push her wheelchair. While I appreciate that the respondent provides an assistance service for passengers with disabilities, I can also understand the complainant's desire to be independent, where possible. Therefore the complainant has established a prima facie case of direct discrimination in that she was treated less favourably than a person without her disability would be treated and that the respondent did not and continues not to provide reasonable accommodation.
4.7 The respondent cites Section 4(4) the Acts make provision for treating people with disabilities differently where there are safety concerns:
Where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.
While this provision is normally taken into account in relation to a disability that results in disturbed behaviour, I think it may also be considered in the circumstances of this case. It is difficult for Ms Duyn to travel without her mobility device and this is powered by a battery. The respondent states that the carriage of this battery could cause harm to the complainant and others.
4.8 Like almost all air travellers, I want safety to be a central concern of airlines. The respondent points out that it is governed by the Convention of International Aviation of which every Member State on the United Nations is a signatory. This convention contains the rules of airspace and aircraft safety. Aer Arann correctly state that battery fluid is listed as a potential hazard in Annex 18 of the Convention. However, Annex 18 also says:
More than half the cargo carried by all modes of transport in the world is dangerous cargo - explosive, corrosive, flammable, toxic and even radioactive. These dangerous goods are essential for a wide variety of global industrial, commercial, medical and research requirements and processes. ..Because of the advantages of air transport a great deal of this dangerous cargo is carried by aircraft. ICAO recognises the importance of this type of cargo and has taken steps to ensure that such cargo can be carried safely. This has been done by adopting Annex 18 together with the associated document Technical Instructions for the Safety Transport of Dangerous Goods by Air...The Annex also makes binding upon Contracting States the provisions of the Technical Instructions which contain the very detailed and numerous instructions necessary for the correct handling of dangerous cargo.
4.9 Page 8-1-1 of Technical Instructions provide for the carriage of mobility aids albeit with the approval of the operator:
With the approval of the operator(s) battery-powered wheelchairs or other similar mobility aids with non-spillable batteries, which comply with Special Provision A67 or the vibration and pressure differential test of Packing Instruction 872, for use by passengers whose mobility is restricted either by a disability, their health or age, or a temporary mobility problem (e.g. broken leg) as checked baggage provided the battery terminals are protected from short circuits (e.g. by being enclosed with a battery container) and the battery is securely attached to the wheelchair or mobility aid. The operator(s) must ensure that wheelchairs or other battery-powered mobility aids are carried in such a manner so as to prevent unintentional activation and that they are protected from being damaged by the movement of baggage mail stores or other cargo. It is recommended that passengers make advance arrangements with each operator.
4.10 To reiterate, the complainant did make advance arrangements with the operator and the battery was clearly labelled compliant with Special Provision A67 and Packing Instruction 872 and it could not be activated unintentionally as it was operated by a key. However, I note that according to the Technical Instructions carriage of a battery-powered mobility device is with the approval of the operator. However, the respondent could not give me any examples of any other airlines that do not carry mobility scooters. I accept the respondent's contention that their fleet cannot be compared to bigger carriers like Aer Lingus or British Airways. At the Hearing I asked the respondent's Ground Operations Manager to give examples of airlines that use the same aircrafts as Aer Arann. She cited regional airlines like Binter Canarias, Finncomm and Goldenair. Like Aer Arann Binter Canarias use ATR 72-201 and ATR 72-500 models. In Binter Canarias's policy for people with reduced mobility they state 'If you need to travel in your own wheelchair, please state this when you make your booking. If your wheelchair is battery powered, you must make sure that the battery is disconnected, and that its terminals are isolated, in accordance with the instructions that you will be given by staff at the airport.' Neither Finncomm nor Goldenair exclude these kinds of batteries on their flights.
4.11 The respondent categorised the battery in the complainant's mobility scooter as a wet cell battery. Neither the ICAO Technical Instructions, the IATA regulations or the Irish Aviation Authority in their memorandum on the transport of battery-powered wheelchairs classify batteries as 'wet' or 'dry'. They describe them as 'spillable' and 'non-spillable'. Therefore Aer Arann cannot escape liability especially in relation to their continuing policy of not allowing the complainant's mobility device to be carried on their flights on the ground that amendments to their Ground Operations manual need to approved by the IAA.
4.12 Neither can I accept that the complainant intended to waive her rights under these Acts when she ticked the 'I accept the terms and conditions' box on the respondent's website when booking her tickets. I find the Ross and Ryanair Ltd and Stansted Airport Ltd, cited by the complainant, persuasive in this regard.
4.13 The respondent cited three incidents with safety concerns regarding mobility devices. In the first and third incidents the electric wheelchairs were not stored correctly. In the second incident damage was very limited. Despite these incidents the International Civil Aviation Organisation, IATA and IAA continues to encourage that battery-operated wheelchairs and mobility devices are carried by air operators. That is why they give detailed guidance on how to store such devices safely. For these reasons outlined in Paragraphs 4.7 to 4.10 the respondent is not entitled to avail of the defence in Section 4 (4) of the Acts.
4.14 Section 4(2) provides an other potential defence for the respondent:
(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.
The respondent stated that all ground staff and aircraft crew would have to be given dangerous goods familiarisation training as well as all the staff of their agents. The respondent submits that this would cost in the region of €25,000 to €30,000. An employee of Servisair who was present on 25th August when Ms Duyn was due to fly with the respondent to Edinburgh was a witness for the respondent at the hearing. She had seven years as a ground services supervisor at Cork airport. Servisair act as an agent for a number of airlines. At the hearing she stated that other airlines did allow mobility devices on their flights and she had not received separate training for same. She pointed out that the carriage of mobility devices was a rare occurrence. She said that instructions were sent by the airline through the electronic reservations system and that this had always worked in the past. This approach seems to be in line with the IAA's Advisory Memorandum on the Transport of Battery-powered Wheelchairs which states:
Operators should review their flight reservation process to require any passenger who intends to travel with a mobility aid to declare that fact when making the booking and provide the following information:
the type and number of batteries fitted to the mobility aid; and
what measures are required to prevent inadvertent operation
The operator shall ensure that this information is provide to all relevant staff (e.g. check-in, loading etc)
I do not accept that onerous training is required to follow these kinds of instructions especially when the ICAO, IATA and IAA provide advice on how these devices are to be stored. In a situation where other airlines, including small regional airlines, can make provision for mobility devices similar to that of the complainant, I do not accept that the cost of reasonable accommodation is other than nominal for the respondent despite the financial difficulties the airline has been undergoing recently. Therefore the respondent cannot avail of the defence in Section 4(2) of the Acts.
4.15 I find that the complainant has established a prima facie case of direct discrimination under Section 5 and that the respondent failed to provide reasonable accommodation under Section 4 of the Acts and that the respondent has failed to rebut it. Neither is the respondent entitled to avail of defences under Section 4 of the Acts.
Harassment
4.16 Section 11 defines harassment under the Acts:
In this section --
(a) (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case 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.
By the complainant's own admission the agents of the respondent both at the airport and subsequently were very polite to her. Therefore, this instant case is distinguished from Kane and Kane v Eirjet (in liquidation) in this respect. While I accept it would be frustrating to be told at the boarding gate that you cannot get on the flight you booked, insufficient evidence has been adduced for me to make a finding of harassment that is clearly linked to the ground of disability under the Acts. Therefore, the complainant has failed to establish a prima facie case of harassment within the meaning of the Acts.
Victimisation
4.17 The ground of victimisation is defined in Section 3 of the Acts:
(j) that one --
(i) has in good faith applied for any determination or redress provided for in Part II or III,
(ii) has attended as a witness before the Authority, the Director or a court in connection with any inquiry or proceedings under this Act,
(iii) has given evidence in any criminal proceedings under this Act,
(iv) has opposed by lawful means an act which is unlawful under this Act, or
(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv), and the other has not (the ''victimisation ground'').
The colloquial meaning of victimisation differs from the statutory definition above. No evidence was presented to me of the complainant being treated less favourably as a result of her making a complaint under the Acts. Therefore her complaint of victimisation fails.
4.18 In considering redress, I am cognisant of the fact that the cost of ticket was refunded and that the complainant was treated courteously at all times. However, this needs to be balanced with the reality that the carriage policy of the respondent continues to discriminate against the complainant. In the preamble to Regulation EC 1107/2006 concerning the rights of disabled person and persons with reduced mobility when travelling by air:
Disabled person and persons with reduced mobility have the same right as all other citizens to free movement, freedom of choice and non-discrimination. This applies to air travel as to other areas of life.
Therefore, I am awarding almost half the maximum award under the Acts - €3,000.
5 Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
that the complainant has established a prima facie case of discrimination on the grounds of disability in terms of both Section 4 and Section 5 of the Acts and this has not been rebutted by the respondent
that the complainant has not established a prima facie case of harassment on the ground of disability
that the complainant has not established a prima facie case of victimisation
5.2 Therefore I award the complainant €3,000 for the discrimination on the grounds of disability.
5.3 I further order that the respondent conduct a review of its policies and procedures (to include their terms and conditions of carriage and their Ground Operations manual) to ensure that they are in compliance with these Acts within six months of this decision.
_______________________
Orlaith Mannion
Equality Officer