EQUAL STATUS ACTS 2000 to 2011
Decision No. DEC-S2012-016
PARTIES
Tim McMahon
-v-
Ticketline (t/a Ticketmaster)
File Reference: ES/2011/009
Date of Issue: 9th May, 2012
Key words
Equal Status Acts - Section 3(2)(g), Disability - Reasonable Accommodation - Ticket Booking - Service ultimately provided - Cannot consider what might have happened
1. Delegation under the relevant legislation
1.1. On 20th January, 2011, Mr. Tim McMahon (hereinafter referred to as "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 17th November, 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 ("the Acts"), on which date my investigation commenced.
1.2. Written submissions were received from both parties. A hearing of the complaint was held on 23rd February, 2012.
2. Dispute
2.1. This case concerns a complaint by Mr. Tim McMahon that he was discriminated against by Ticketmaster Ireland Ltd. (hereinafter referred to as "the respondent") on the ground of disability, contrary to section 3(2)(g) of the Equal Status Acts, 1998 to 2011, with respect to the booking of accessible seating for a concert.
3. Summary of the Complainant's case
3.1. The complainant has severe osteoarthritis. He stated that he received an e-mail ("the pre-purchase offer") from the respondent inviting him to book early tickets for an Eric Clapton concert that was taking place in May, 2011. He submitted that he went online at 9 a.m. on 14th February, 2010 with the intention of buying these tickets but was directed to a telephone number in order to obtain accessible seating. His wife, who was present at the hearing, stated that she rang the number on the complainant's behalf. She said that she often makes calls for him as it is frequently necessary during phone calls to get up to get something and the complainant could not do so. She stated that she rang the number in question and was required to provide a code (i.e. password) in order to obtain the tickets even though she read to the respondent the e-mail the complainant had received which made no mention of a password.
3.2. The complainant stated that he then sent an e-mail to the respondent and received an automated response in return saying that it would take up to 24 hours to respond. He stated that it was clear that this would not solve his problem so he placed a message on the website saying it was urgent and in the meantime asked his wife to make another call. Mrs McMahon stated that she spoke with "a lady" who repeated what she had been told in the previous phone call. She said, however, that this person was "more understanding" and agreed to hold a pair of tickets until lunchtime pending receipt of a password but did not tell her how to obtain a password. The complainant said that he did not receive a response to his e-mail or website query before lunchtime that day.
3.3. Mrs McMahon said that she rang back again around lunchtime and spoke with the same person. She said that she "begged" and "cajoled" her and eventually received the tickets she sought, though she stated that it was clear to her that "the lady" provided the tickets even though it was against company policy for her to do so. She agreed she was speculating in that respect but stated that it was "informed speculation". She stated that she was not sure if a separate offer (hereinafter referred to as the "password offer") was mentioned in the course of her conversations with the respondent on the day in question. However, she denied that there was any confusion in her communication with the respondent as she was clear what offer she was referring to.
3.4. In response to the respondent's submission that he had no locus standi (see par. 4.1 below), the complainant stated that he and his wife were acting as a team and that discrimination of one is discrimination of another in that context. He added that, in any event, his wife was acting as his agent in that context.
3.5. The complainant stated that he did not take issue with being required to use the phone in order to obtain reasonable accommodation. His issue was that he was refused accessible seating for the concert when he did phone. Nonetheless, he could not see why the respondent could not make accessible seating available online and gave an account of why he considered that to be the case. He stated that the respondent's defence that its system of providing accessible seating was reasonable accommodation was not germane to this case as the system did not work. More importantly, he stated that that the respondent did not address the issue when the system failed.
3.6. The complainant stated that he only got tickets because he and his wife were "pushy". He stated that no other disabled person could access tickets in the time frame allowed except by being pushy and stated that the Tribunal should consider that he would not have been provided with the tickets had he not been pushy. He said that he got lucky in finding someone who listened and applied common sense. In that context, he submitted that the respondent's assertion that "it would be perverse if each such unintentional mistake automatically resulted in (it) being liable for unlawful discrimination" must fail because it was immediately and repeatedly given an opportunity to rectify the mistake and failed to do so. In short, the complainant submitted that the respondent had set up a sales system which failed to make provision for the needs of disabled customers.
3.7. The complainant further submitted that a non-disabled customer would have been able to purchase tickets online irrespective of any problems they might have encountered dealing with customer services representatives. On the other hand, all disabled customers trying to purchase tickets via the special offer would have been affected. He submitted that the respondent's error disproportionately affected disabled people compared to the general public and is, therefore, indirect discrimination on the ground of disability.
3.8. The complainant stated that when it was clear that Mrs McMahon was not ringing about the password offer, the respondent should have sought the intervention of a Manager. He also stated that there was no proper system for complaints within a time frame which would allow his complaint to be dealt with before the offer ended (which was within 48 hours of it becoming available). The complainant submitted that receiving the tickets could not and did not retrospectively diminish the distress and hurt he had already felt from the discrimination. He submitted that the respondent engaged in insulting and demeaning correspondence thereafter, particularly in referring to "wheelchair bookings" (when he was not a wheelchair user).
3.9. The complainant referred to the case of Moloney -v- Park House Hotel in saying that the respondent should have considered his special circumstances and provided him with the tickets immediately. He stated that if he did not ring again he would not have received the tickets. He stated that the fact that he received the tickets does not negate the fact that he was discriminated against in the first instance and the discrimination was present and was serious. Furthermore, with respect to quantum, he stated that in Moloney, the respondent issued an immediate apology and acknowledged the transgression whereas in this case there was no such apology or acknowledgement. He stated that this was a serious case of discrimination and so the Tribunal should award him €5,000.
4. Summary of the Respondent's case
4.1. The respondent submitted that a question arose as to whether the claim before the Tribunal is valid in that the claimant's wife was the person who communicated with the respondent and she is the person with locus standi in that case. It further submitted that it did not discriminate in circumstances where tickets were purchased by the complainant's wife.
4.2. Without prejudice to this argument, the respondent submitted that it has comprehensive procedures to ensure that its services are accessible to persons with disabilities and described same. It submitted that, in 2011, it sold 61,503 tickets to customers requiring accessible seating. The respondent submitted that accessible tickets are available through a number of methods, except that online tickets are only available in very limited circumstances. It provided detailed submissions with respect to the challenges associated with providing facilities for booking accessible seating online. It submitted that the only way of ensuring customers needs are met with respect to accessible tickets is to provide a mechanism for them to speak directly with customer service representatives who can then take into account the specific needs of the customer and select the most appropriate seat for each customer.
4.3. The respondent added that it considered that the provision of a system to create an online sales channel for accessible seating would be beyond nominal cost and cited estimated figures in that respect. It also outlined reasons why the current system works better than an online system would in any event, in particular that different disabilities have different seating requirements so an online system may not match those requirements as well as the current system does.
4.4. The respondent submitted that there were two parallel pre-sale offers running on the day in question. One of these was the pre-purchase offer which was the offer the complainant was invited to take up and which did not require an additional password. The other sale was the password offer which was only available to particular customers and required an additional password to validate entitlement. It stated, however, that the marketing department had not informed customer service about the pre-purchase offer and so the password offer was the only offer that customer service were aware of at the time in question. It submitted that this was a simple and unavoidable human error. Furthermore, it submitted that the initial refusal to sell tickets to the complainant was solely a consequence of him being unable to supply a password and was unrelated to his disability.
4.5. The respondent stated that pre-purchase offers, such as were made to the complainant in this case, happen infrequently but where they do occur customer service are usually made aware of them. It accepted that it could have provided a more efficient service on the day in question. However, it submitted that it took no more than four hours and forty-six minutes to obtain the tickets in question (given that the complainant was able to book the tickets at 1:47 p.m). It also submitted that at least a day and a half remained for the complainant to obtain tickets under the offer at that point (as it was running for two days). It submitted that it cannot accept the logic of the complainant's submission which would appear to indicate that a rare and isolated instance where the system breaks down due to human error automatically constitutes unlawful discrimination on the grounds of disability.
4.6. With respect to the complainant's claim of indirect discrimination, the respondent denied that he was placed at a particular disadvantage compared with other persons by an apparently neutral provision. It stated that, in the first instance, the condition to provide a password was not placed on him by virtue of his disability. It submitted that it was not an apparently neutral provision in any event as it was a system specifically designed to reasonably accommodate the needs of persons with disabilities. It submitted that the difficulties experienced by the complainant were the result of an administrative mistake.
4.7. The respondent also submitted that the use of the word "wheelchair" in relation to accessible tickets is not evidence of prejudice, pointing out that the universally recognised symbol for accessible seats is a person in a wheelchair. It submitted that it does not agree that it has not acknowledged the effect this experience has had on the complainant.
4.8. In summary, the respondent stated that the test to be applied is not whether the system worked or not but whether reasonable accommodation was provided. In that context, it stated that reasonable accommodation was provided because the complainant attended the concert with an accessible seat and on the basis of the pre-purchase offer. It stated that in Moloney, no service was provided and there was no system in place to accommodate the complainant, whereas in the present case there was. It reiterated that there was a system of reasonable accommodation in place, but if the Tribunal were to find a technical breach because it did not work, then it was de minimis. It stated that the "demand" for €5,000 was not reasonable in those circumstances.
5. Conclusions of the Equality Officer
Jurisdictional Issue
5.1. The respondent submitted that the complainant has no locus standi in this case as it was his wife who communicated with the respondent with respect to the accessible seating in question. Discrimination in relation to Section 5 of the Acts occurs, inter alia, in the provision of a service to the public. The present complaint relates to the provision of accessible seating to the complainant (as well as his wife) through the respondent's booking service. It is clear that the complainant's case is that the respondent discriminated against him by failing to provide him with that service. Once that alleged discrimination relates specifically to him, then Section 5 applies. How he became aware of the alleged discrimination is irrelevant in that context.
Substantive Matters
5.2. 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.
5.3. The complainant has made a complaint on the disability ground, and I must consider whether the respondent has discriminated against him on that ground. As the complaint is on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent.
5.4. The issue here is clearly one of reasonable accommodation as the complainant could have booked a seat online except that he had a disability that meant he required an accessible seat to attend the concert in question. In all the circumstances of the present complaint, for the complainant to establish that the respondent failed to provide him with reasonable accommodation he must show three things: firstly, that it was impossible or unduly difficult for him to avail of the service in question; secondly, that it would not have been impossible or unduly difficult for him to avail of the service if he had been provided with special treatment or facilities; thirdly, that the respondent refused or failed to provide him with special treatment or facilities when it could have done so without incurring more than a nominal cost.
5.5. The respondent accepted that it erred in that the complainant should have been able to obtain the accessible seats for the concert in question without a password when he first contacted it. However, it submitted that it was not impossible or unduly difficult for the complainant to avail of the service in question as, inter alia, the complainant was provided with an accessible seat and attended the concert. Furthermore, he obtained a seat a matter of hours after his first phone call in which he was required to provide a password. In contrast to this particular submission, the complainant submits that the initial refusal to provide an accessible seat without a password was a failure to provide reasonable accommodation and that he would not have obtained a ticket if he had not been "pushy".
5.6. In that context, the key question is: what was the service sought by the complainant? I am satisfied that the answer to that question is the provision to him of accessible seats for the concert in question at the special price attached to the offer of which he had been notified. While I appreciate that he had to raise the matter on a number of occasions with the respondent in order to do so, he ultimately obtained that service. It is well established in a number of cases in the Tribunal that delays in the provision of a service that is ultimately provided does not mean there was a failure to provide reasonable accommodation even if a complainant has to "push" for the provision of the reasonable accommodation in question as happened in this case . In short, it could not have been impossible or unduly difficult for the complainant to avail of the service in question when he actually availed of it.
5.7. The complainant essentially submits that I should look past the fact that he was provided with the service in question and consider that he would not have been provided with that service had he not been "pushy". However, my decision cannot be based on what might have happened had the complainant not taken the action that he did. To do so would be engaging in speculative decision-making. This would be contrary to the fundamental principles of fair procedures and natural justice which are the cornerstones of decisions of this Tribunal. Indeed, it would be contrary to the fundamental principles of common law. In the interests of completeness, it should be stated that the present case must be distinguished from Moloney -v- Park House Hotel as in that case the complainant was not able to avail of the service in question (i.e. a hotel room on a particular night).
5.8. It may be that if the complainant had not followed up on his initial phone call, he may not have obtained the accessible seats in question and he may have been discriminated against in that context. However, it may also be that, had the complainant been unsuccessful in obtaining the seats in question, the respondent would have sought to rectify the matter in whatever way it could. Would this have been sufficient to meet the requirements of the Acts in such a scenario? Perhaps so, perhaps not. I make the point to illustrate that there is a good reason why my decision in this respect must be based on the particular set of actual facts and circumstances of this complaint, rather than hypothetical ones.
5.9. The issue of indirect discrimination was also raised by the complainant in that, if it is accepted that the system operated by the respondent for booking tickets is a neutral provision, then the complainant was discriminated against in the context that he was set at a particular disadvantage because of his disability in being required to book his tickets over the phone and that he was unable to book those seats in that context. However, again he was able to book those seats and he was able to attend the concert. He cannot have been set at a particular disadvantage in that context.
5.10. It is clear that the complainant was genuinely and seriously distressed by what occurred, and was particularly distressed at the difficulties he encountered in communicating with the respondent. I understand his frustration and his feelings in the matter. He should have been provided with the accessible seats in the first instance and I note that the respondent has stated it has put measures in place to prevent such occurrences from repeating. It is wise to do so. However, in all the circumstances of the present case, this is an issue of customer service rather than discrimination as the respondent did not fail to provide the complainant with reasonable accommodation. The complainant has failed to establish a prima facie case of discrimination on the disability ground in that context.
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 him by the respondent on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and Section 5 of the Equal Status Acts.
6.3. The complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
9th May, 2012