The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-014
Parties
Martina Reidy
(Represented by Charles O'Connor Solicitors)
V
Bus Éireann
Case ref: ES/2009/0036
Issued: 26 April 2012
Keywords:
Equal Status Acts 2000 to 2004 - Harassment -Disability - Provision of Goods and Services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Ms. Martina Reidy (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 16 March 2009. The respondent was notified of these complaints in accordance with the Acts on 10 February 2009. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 27 September 2011. An oral hearing, as part of the investigation was held in Dublin on 30 March 2012. An adjournment had been granted to the complainant in circumstances where her solicitor was unavailable due court commitments.
2. Dispute
2.1. The dispute concerns a complaint of unlawful harassment on the disability ground. The complainant submitted that Bus Éireann (hereafter "the respondent") harassed her in a terrible manner on 8 November 2008 at approximately 10.20 am. For reasons unknown the respondent driver became extremely aggressive to the complainant, shouting and pointing a finger at her. The driver told the complainant that he would not allow her to travel on a bus driven by him again. The complainant is deeply embarrassed and greatly offended by this treatment.
3. Case for the complainant
3.1. The complainant is a person with disabilities. She suffers with kidney complaints, hearing difficulties and depression. She has a companion pass awarded to her by the Department of Social Protection. It entitles the complainant and a companion who is aged 16 or over to free travel with the respondent.
3.2. The complainant was travelling to Cork on 8 November 2008. It was a Saturday morning. The complainant was travelling with her daughter and sister (who is also the complainant's carer). As the bus arrived to the bus stop, the complainant's daughter got on first, purchasing her ticket. The complainant's sister who also was travelling on a free pass, embarked next. She indicated her pass to the driver and stated her destination. The complainant got on last and also indicated her companion pass to he driver. She also stated her destination in a low voice.
3.3. The complainant had made her way pass the driver when the driver suddenly started shouting at her. The driver told the complainant: "Don't you walk away from me". He pointed his finger at the complainant who replied that she had told him where she was going and that she was not feeling well. The driver replied: "I am not well talking to you". It was also submitted that the driver told the complainant and her sister that: "youse will never get on my bus again." It was pointed out that the driver was from Dublin.
3.4. The complainant's sister, who gave evidence at the hearing, stated that she heard the complainant state her destination to the driver and that when she called at her sister to sit down the driver warned her "not to tell that lady to sit down while I [the driver] am speaking to you".
3.5. The complainant felt humiliated because people on the bus kept looking at her. She stated that some of the persons on the bus would have been known to her and that it was humiliating for her that the driver behaved towards her in the way he did. The complainant stated that she was frightened because she thought that the driver was "going to go for me". The driver then made the matters worse by staring at the complainant and her companion throughout the journey. Both the complainant and her sister felt mortified by the treatment.
3.6. As soon as the complainant and her witness reached their destination they made a complaint to an inspector. The complainant received a phone call from the respondent a couple of days after making her complaint. She chose not to engage with the respondent having instructed a solicitor by then.
3.7. It was submitted that the complaint would have been satisfied with a simple apology for the appalling treatment that she received. The complainant accepts that the harassment she experienced does not warrant the maximum redress under the Acts but submitted that redress somewhere in the middle of the spectrum would be appropriate. The complainant still has flashbacks about the humiliation that she experienced that day.
4. Case for the respondent
4.1. The respondent is coach operator who provides services nationwide. 30% of the respondent customers avail of the various free travel schemes provided by Department of Social Protection. Such service users include persons with disabilities, carers, older people, widows, etc. At the time of the alleged incident the driver had been driving for the respondent for approximately 2 years.
4.2. The respondent categorically denied that it harassed or discriminated against the complainant on the disability ground. It was submitted that the respondent must check that passengers have valid tickets/passes. It is not reasonable for the complainant to take offense when the driver is merely carrying out his duties. The driver must check all of the passengers' tickets and passes. It was submitted that the incident complained of lasted no longer than 10 seconds.
4.3. It was submitted that the complainant and her party were able to avail of the service and it is the common case that they reached their destination. The complainant and her party were never blocked from getting on the bus or ordered off the bus. It was submitted that there is nothing wrong with the driver asking the complainant or indeed any other passenger to show their pass and that there is no reason for a person to feel humiliated because of such a request.
4.4. The driver recalled the events somewhat differently. He also recalls three passengers getting on at that stop. His recollection as to who got on varied from that of the complainant. He submitted that he did not see the complainant's pass because when she indicated to the driver the complainant was showing the back of the pass. He stated that he spoke to the complainant a couple of times but that she continued just going by. It was suggested by the driver that it is possible that the complainant did not hear him the first couple of times he called after her. As the driver is not able to leave his seat he may have raised his voice to call the complainant back. He accepts that she came over to him and he saw that she had a valid pass. In relation to the complainant and her witness' claim that he continued to stare at them throughout the journey the driver stated that it was part of his duties to occasionally check that everything was in order with the passengers. He was not glaring at the complainant and her sister,
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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.
5.2. Much was made of the fact whether the respondent could have known that the complainant is a person with a disability. It was the common case that it is not obvious that the complainant is a person with a disability. I note that a number of categories of individuals are entitled to a free pass under the Department of Social Protection scheme. It is the complainant's case that it was the presence of the companion pass that revealed that she had a disability. I note that the respondent has highlighted the fact that the driver merely needs to be satisfied that the person has a valid free travel pass and record the use of such pass in order for the respondent to be able to charge the Department of Social Protection accordingly. It was submitted that many categories of people had such passes. An example was the complainant's sister who is entitled to a single person pass [no entitlement to companion travel] as a carer. I note that there are subtle differences in relation to the free travel passes. For example, one pass may contain an orange stripe, the word 'companion', etc. It was submitted that the driver would have been capable of forming a view that the complainant was a person with a disability from a cursory glance at a pass. I am not convinced with the veracity of such an argument. However, for the sake of argument, I accept that there is a possibility that the respondent employee recognised the complainant to be a person with a disability.
5.3. In this case it was submitted that the complainant was harassed by the respondent's employee and I was invited to infer that she was so treated because of her disability. It ought to be noted that harassment is defined in section 11 of the Acts as "any unwanted conduct related to any of the discriminatory grounds" that has "the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person". Furthermore, such unwanted conduct may consist of "acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material". It is clear that the definition of harassment provided in the Acts combines thus both subjective and objective tests since the conduct must be both unwelcome to the recipient and reasonably capable of being regarded as 'offensive, humiliating or intimidating'. Moreover, it is clear that in interpreting the language of the Acts that harassment is not mere discrimination, that is, less favourable treatment. Harassment, in my interpretation of the Acts, refers to an overt act directed at the recipient. Such an act - be it conveyed verbally, by body language or via images - must be accompanied by symbols that are linked with meaning that conveys an offensive, humiliating or intimidating message about the person's protected status. The message conveyed must have a clear nexus with the protected ground. That is, it is not sufficient in my view to demonstrate that the complainant found the manner in which a question had been asked, for example, to be offensive to her. Such a question must contain a reference to the protected status and such a reference must be offensive, humiliating or intimidating to the complainant before it can be construed as harassment within the meaning of these Acts.
5.4. It is a defence under section 11(3) of these Acts for the respondent organisation to prove that having identified a responsible person for such purpose he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be. I note that the respondent did attempt to include the complainant in a customer complaint procedure but that the complainant for her own reasons had refused to participate in it.
5.5. Having heard the full facts of this case I am satisfied that all that has been proffered in support of the claim of harassment is mere assertion unsupported by any evidence. I find that even if I accepted the complainant's case against the respondent at its highest, the complainant has no cause of action under these Acts against the respondent. I have found no evidence to support an assertion that the language or gestures used in the incident involving the complainant were linked with the fact that the complainant is a person with a disability. While I accept that the complainant found the exchange that took place concerning her pass and/or destination to be rude and offensive I do not find that it can constitute a claim for harassment under these Acts.
5.6. While I note that the driver allegedly said to the complainant and her sister - he denied this - "youse will never get on this bus again". I am satisfied that the reference "youse" in this context - and I am basing my interpretation on the complainant and her witness' evidence - was understood by them as referring to the complainant and her sister, not to people with disabilities (the sister is not a person with a disability).
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. I find that the complainant has not established a prima facie case of discrimination on disability ground. Therefore, this complaint fails.
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Tara Coogan
Equality Officer
26 April 2012