The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2012-002
Parties
A service user and a minor (suing by his next friend)
(Represented by Mr. Tiernan Lowey BL on the instructions of Kent Carty Solicitors)
V
A service provider
(Represented by Ms. Cathy Maguire BL on the instructions of the in-house legal service)
Case ref: ES/2010/0063 and 64
Issued: 12 January 2012
DECISION NUMBER DEC-S2012-002 - CASE REFERENCES ES/2010/0063-64
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination - Discrimination by association - Race -Disability - Provision of Goods and Services - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. A service user and a minor suing by his next friend (hereafter "the complainant" and "minor" respectively) referred claims to the Director of the Equality Tribunal under the Equal Status Acts on 23 June 2010. The respondent was notified of these complaints in accordance with the Acts on 20 February 2010. The case was struck out by the Director as it was found to be outside the time limits required by the Acts. An order of the Circuit Court dated 9 February 2011 directed the Tribunal in accordance with s. 21(3), that s.21(2) shall be dispensed with and the matter be readmitted for hearing. 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 8 December 2011. The complaint lodged by a third complainant was adjourned during the hearing when it became apparent to the equality officer that she spoke little or no English and was thus unable to participate in the proceedings.
2. Dispute
2.1. The dispute concerns complaints of unlawful discrimination on the race and disability grounds. The complainants submitted that a service provider (hereafter "the respondent") discriminated against them by firstly insisting that the minor pay for his ticket (despite the minor being in possession of a valid companion pass) and secondly, by ordering the complainants off the bus.
3. Case for the complainant
3.1. The complainants were in a city centre on 16 January 2010. The complainants are black and the service user originates from a named African country. The minor, now 7, who is visually impaired and has insulin dependent diabetes, was receiving mobility training in order to facilitate his independence as he grows older. The complainant and the minor had been in town shopping. The complainants were intending to get a bus as the complainant was anxious to get home as the minor had only recently been diagnosed with type 1 diabetes and required his insulin injection.
3.2. At approximately 12.00 o'clock the complainants were boarding a bus. Both the complainants have a 'Companion Free Travel Pass'. Such a pass entitles the bearer to unlimited travel and to bring an additional passenger as a companion. The complainant submitted that he boarded the bus first, closely followed by his son whose arm the complainant was supporting. The complainant clearly displayed two companion passes to the driver who then retorted that he would not allow the minor on the bus as by law a child would have to pay for a fare. Having heard this, the minor became upset and stated crying. The complainant replied to the driver that the minor had his own bus pass and was entitled to board the bus. Both bus passes were shown to the driver and the complainant insisted that the driver close the doors of the bus and proceed with the journey. The bus did so but at the next stop the driver ordered the complainants to get off the bus. The complainants were shocked at this treatment but got off the bus as they were embarrassed with the imputation that they had done something wrong.
3.3. The complainant rejected the respondent's claim that the driver simply misunderstood the companion pass used in this incident. Such passes are widely used. Furthermore, the complainant rejected the respondent's claim that the driver did not actually see the minor's pass and as a result, the driver was only ensuring that the complainant understood that the child could not be covered by the companion pass. The complainant is adamant that the two passes were clearly shown to the respondent. It is his claim that the driver suspected the complainant and the minor of wrongdoing. The reason for this, he suggested, was perhaps the fact that they had two companion passes in one family.
3.4. The complainants maintained that they were treated less favourably than white Irish people would have been treated in similar circumstances. The complainant submitted that white older people were not asked to display their passes, they were merely waved in. In the alternative, it was submitted that the foregoing is evidence of disability discrimination against the minor whose visual disability was clearly evident from the fact that he was carrying his (folded) white stick. The complainant was discriminated by reason of his association with the minor.
3.5. The complainant submitted, in very strong terms, that this incident has had a detrimental affect on the complainant and the minor, who could have suffered serious health consequences as a direct result of this treatment. The minor himself told the investigation that he no longer travelled on buses and as a result, his independence has been seriously curtailed by this incident.
3.6. It was submitted that the fact that the driver did not report the incident to his manager was suspicious. Furthermore, it was submitted that the respondent had conceded liability in correspondence submitted to the investigation and that the denials of any wrongdoing were a departure from these.
4. Case for the respondent
4.1. The respondent is transport provider. It was submitted that all drivers are provided with training in relation to customer care.
4.2. It was accepted that the complainant and his son were using the service on 16 January 2010. It is also accepted that the driver in question informed the complainant that his companion pass does not cover his son because a companion, in accordance with the rules governing the pass, must be aged 16 or over. The driver submitted that he had seen the complainant flash his pass. However, as he the complainant was travelling with the minor who could not have been aged 16 or over he informed the complainant that he would have to pay for the minor. The driver submitted that it is quite common that individuals with companion passes attempt to use said pass to cover for the fares of children travelling with them. However, the scheme does not allow for this and drivers often have to explain to such people that the rules do not allow for a child to be a companion. The driver submitted that he informed the complainant of this fact using a normal tone and in a similar manner as he would any other person in similar circumstances.
4.3. The respondent submitted that the complainant became abusive when he was told that the fare of the minor must be paid for. The complainant then produced a second companion pass that was in his son's name and told the driver that his son was entitled to travel on this pass. The driver was this satisfied that the fares of both the complainant and the minor were covered. The complainant made his way towards the back of the bus with the minor while shouting at the driver. The driver submitted while he could not exactly remember what the complainant was shouting about he had had formed the impression that the complainant believed that he had been badly treated in Ireland in the past. The bus pulled away from the stop and the complainant and the minor dismounted the bus at the next stop. The driver submitted that after he had been shown the second pass he had no reason to communicate with the complainant any further as he was satisfied he and the minor had valid tickets.
4.4. The respondent denied that the minor was discriminated against because of his disability and that, as a result, the complainant was discriminated by association. It was submitted that the driver would not have been in a position to see the minor properly as he was getting on the bus. There is a solid door separating the driver from the passengers. As such the driver said he would not see more than the top of the minor's head. It was submitted that the complainant and the minor were treated exactly in the same manner as any other person - regardless of skin colour - who is in possession of a similar pass in circumstances where the pass was not clearly observed by a driver.
4.5. Furthermore, it was submitted that the complainant and the minor have failed to show any evidence from which an inference of discrimination can be drawn. It was submitted that there is no facts that support an assertion that non-black Irish citizen of African origin would have been treated in a more favourable manner in similar circumstances. It was respectfully submitted that it is impermissible for an equality officer to reach conclusions of fact based upon mere supposition or speculation .
4.6. The respondent relied on section 42 (3) of the Acts to argue that the respondent does not have vicarious liability in relation to this case. It was submitted that the respondent has trained its staff to deal with passes and as such, it has taken reasonable steps to prevent an employee from doing the alleged act or from doing in the course of his employment alleged acts of that description.
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. At the oral hearing it became clear that both the complainants were able to board the bus as passengers. It was accepted that the driver had asked for a fare for the minor/told the complainant that his pass would not cover the minor's fare. It was also accepted that on the production of the minor's own companion pass the complainant and the minor made their way over to the back of the bus. I am entirely satisfied that the complainant and the minor were not ordered off the bus at any time. The complainant's own evidence was that having spotted a second bus he told the minor that they would swap to that particular one. He got off the bus on his own volition because, as he stated, he felt embarrassed because the bus driver had enquired about the passes. I do not accept that the complainant had no option but to get off, I find that he chose to do so. Thus as it is clear that the complainant and the minor were offered a service, the question remains whether the comments made/request to see the second companion pass can be construed as less favourable treatment within the meaning of these Acts.
5.3. The complainant is clearly of the view that it is impossible for this driver not to have seen the two passes he claims he clearly displayed to the driver. It then follows that such a failure was fabricated in order for the driver to humiliate the complainant and the minor both of whom are black and/or because the minor has a disability. It is clear that the complainant and minor were and continue to be in possession of valid companion passes. While the complainant was adamant at the hearing that he had held the two passes clearly up, one on each hand, I do not accept that this is the case. The complainant was caring for his small son at the very same time. He told me that he was concerned about his son's sugar levels and was anxious to get home. I find that in such circumstances, on the balance of probabilities, the complainant would have used one of his arms to assist the minor (he did say this at the hearing but altered this position during cross-examination where he was resolute that he had held the two passes up with each hand). I find it likely that the complainant may have been holding two passes but they would have been in one hand. Thus I find that it is perfectly feasible that the driver did not see the second pass. It is clear from the evidence that the issue here was the matter of the minor's fare. It is clear that as soon as the driver saw the minor's companion pass he no longer sought payment for his fare. This fact is clear from the evidence of both parties.
5.4. This Tribunal was asked to infer, and I find that it is entirely appropriate to apply a hypothetical comparator in such circumstances, that a white person - who was using a travel pass and was accompanied by a child clearly under the age of 16 - would not have been told that a such child is not acceptable as a companion. No facts supporting such an assertion have been provided. The complainant submitted that he noted that elderly white persons were able to pass the driver undisturbed. These persons were clearly not travelling in the company of a young person (under 16) and I find that such an observation does not relate to a genuine comparator situation. I do not accept, without compelling evidence to the contrary, that a white person travelling with a companion pass is not expected to meet the cost/have valid tickets for a minor travelling with them.
5.5. Furthermore, I do not find that the minor was treated less favourably because of his disability. I do not accept, having met the minor, that his disability is immediately obvious. I also accept that a driver would not have been able to see a folded white stick in the hands of a young man who had not seen his 6th birthday at the material time. I find that the minor was treated exactly the same as any child over the age of three who was attempting to travel on the bus in the company of a person with a companion pass. A fee is payable for any such child and it is normal that a driver would ensure, in accordance with his duties, that an appropriate fare is paid or covered.
5.6. There is no evidence that the complainant has been treated any less favourably than another person was, is or would have been when travelling with a pass that was not clearly displayed or seen. It is the driver's duty to ask to see a pass/ticket and I find that it is unreasonable for a passenger to take offence when such a request is made. I find that such requests occur from time to time. I also accept that passengers do on occasion complain about various aspects of the service to drivers and that drivers are unlikely to report every such incident. I accept the driver's explanation that as far as he was concerned there was no issue to report.
5.8. Finally, the matter of the correspondence between the complainant and the respondent. I view this correspondence as a clear attempt by the respondent to placate an aggrieved customer. I do not accept that it is evidence that the respondent agreed that the complainant and the minor had been discriminated against.
5.9. Much discussion took place about the necessity/competence of race/disability training with the respondent and whether the respondent was doing enough to ensure compliance with the Equal Status Acts in the respondent service. It ought to be clear that this situation is not one where such matters are relevant. The complainant and the minor were treated exactly like other passengers are, have been or would be treated in similar circumstances. The facts do not lend themselves for an argument that would support the view that different treatment would be necessary to ensure equality of treatment in accordance with the Acts.
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 and the minor have not established a prima facie case of discrimination on the race and/or disability ground. Therefore, these complaints fail.
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Tara Coogan
Equality Officer
12 January 2011