EQUAL STATUS ACTS
DEC- S2016-002
Robert Sinnot
versus
Bus Eireann
(represented by CIE Group of companies Solicitor.)
File reference: ES/2014/0051
Date of issue: 26th January 2016
Keywords: Equal Status Acts, Disability, Failure to provide reasonable accommodation,
Dispute
1.1 The case concerns a claim by Mr Robert Sinnot, (hereinafter referred to as ‘the complainant’) that he was subjected to discrimination by Bus Eireann (hereinafter referred to as ‘the Respondent’) on disability ground contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’) when it failed to provide him with reasonable accommodation, pursuant to Section 4 of the Acts. The complainant submitted that the respondent in providing services had failed to meet its obligations under the Acts.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 29 January 2014. On 29 September 2015, in accordance with her powers under S. 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director delegated the case to me, Peter Healy, 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. On this date, my investigation commenced. Submissions were received from both parties and a hearing was held on 13 January 2016 at the offices of the WRC, Davitt House, as required by Section 25(1) of the Acts.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83.3 of the Workplace Relations Act 2015.
Summary of the complainant’s submission
2.1 The complainant submits that the respondent’s iPhone mobile application is not accessible to people with a severe visual impairment.
2.2 The complaint submits that he is a user of the respondent’s bus service and has a severe visual impairment. He submits that he uses his iPhone as his primary means of obtaining information, because it has excellent assistive technology – namely, a screen-reader named ‘Voiceover’ which reads whatever text is on the screen aloud. The complainant submits that this technology has made a great difference to the lives of people with a severe visual impairment since 2009, and is global. The complainant submits that Accessible apps are the norm, not the exception.
2.3 The complainant submits that he first encountered difficulties with the Bus Éireann mobile application in March 2013 when he downloaded it to see what time the buses on the following day would be. The complainant submits that he was amazed and frustrated to find that the app was completely inaccessible to Voiceover (his only means of accessing the information contained in it). On that occasion, the complainant says that he had to guess what time the next bus was, and he and a relative waited for the best part of an hour before the Dublin bus arrived. The complainant submits that next day, he contacted Bus Éireann’s Access Officer and explained to her the difficulties that he was having with the app. She said that she would pass it on to the IT department and would let him know when the problem was fixed.
2.4 The complainant submits that during the summer of 2013 up to October of that year that he noticed that the application was still completely inaccessible. The complainant submits that it was his intention to make a complaint under that Acts at that point but that the Access Officer persuaded him to give her a week. On 25 October the Access officer responded by email directing the complainant to two applications produced by the NTA (i.e., not Bus Éireann), advising him that these two apps have all Bus Éireann’s data and accessibility capability. She recommended these apps to use to access their data while they worked on getting their own application accessible. She informed me that Bus Éireann would let me know when its application had been upgraded.
2.5 The complainant submits that neither of the other two applications had Voiceover accessibility and that there are many features on the Bus Éireann app which are not on either of the other two apps.
2.6 The complainant submits that he contacted the Access Officer again in November 2013 to be informed that the situation hadn’t changed. The complainant submitted his notification of a complaint under the Acts to the respondent on 24 December 2013.
2.7 The complainant submits that, a comparator who can see and read, not only can access Bus Éireann’s app and check out bus-times online, but they can also walk into a bus-station and read the bus-times and departure and destination points. They can also take this literature with them to use at any time at their own convenience. The complainant submits that the least he can expect is for the application to be accessible.
2.8 As a result of lack of reasonable accommodation by the respondent Bus Éierann, the complainant submits that his ability to travel independently as a person with a severe visual impairment, has been adversely affected, even to the extent that he has not travelled on several occasions, precisely because of the inconvenience and/or impossibility of finding out:
a). Bus Éireann departure and arrival times, and
b). the precise location of the departure and destination points on offer.
Summary of the respondent’s submission
3.1 The respondent submits that it is their policy to welcome any customer with a disability to use their services and whenever possible to do the utmost to facilitate the varied needs of all of their customers.
3.2 The respondent agrees that the application in question did not support Voiceover functionality in 2013 as it had not been part of the brief for the developer employed as its cost was prohibitive.
3.3 The respondent submits that the existence of the App has not made bus travel impossible or unduly difficult for the complainant. The respondent submits that the complainant could call a national helpline and be given details of all bus timetables.
3.4 During 2014 a new developer was engaged to upgrade their Website to include Voiceover functionality. In March 2015 the new website was launched and it complies with relevant accessibility guidelines and includes voiceover capability.
Conclusions of the Equality Officer
4.1 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) provides that: as between any two persons, the discriminatory grounds are,
(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),.,”
In the instant case the complainant has a disability under the Acts and this is not contested by the respondent.
4.2 Section 38A (1) provides that the burden of proof is: " 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." It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.
4.3 Having heard a full account from the respondent regarding their attempts to introduce voiceover capability to their application, I am satisfied that they were reasonably delayed from doing so for a combination of financial and ICT development reasons. Specifically, in the timeframe of this complaint, the respondent could not justify a significant investment in an application which was ultimately to be replaced by a new website.
4.4 It was agreed at the hearing that the new website has voiceover capability yet I must accept the complainant’s submission that he is unable to use the website. This demonstrates the challenges for the respondent in meeting the needs of the complainant but I accept the respondent’s submission that it is their intention to maximise the technological options available to the benefit of persons with visual impairment. I also fully accept the complainant’s account of his frustration with the inaccessibility of the respondent’s application.
4.5 In regards to reasonable accommodation, Section 4 of the Acts provide:
4.(1) 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.
In the instant case, the complainant contends that the respondent failed to put in place measures that would allow him to access information about their services using his iPhone. I must consider if the absence of these measures made it impossible or unduly difficult for the complainant to access information about the respondents services leading to an inability of the complainant to avail himself of those services.
4.6 I accept the respondent’s submission that the complainant could at all times access the respondent’s time table and other information through a telephone service. It is the complainant's submission at hearing that he does not have any real memory of trying to use this telephone service. It is also clear that the complainant had little difficulty in contacting other members of staff for other reasons when he needed to. Ultimately, the complainant continues to use the respondent’s bus service. While information is not available in the method desired by the complainant, I must conclude that it is not impossible or unduly difficult for the complainant to access information on the respondent’s services or to use those services.
Decision
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. I hereby make the following decision in accordance with section 25 of the Equal Status Acts. Having investigated the above complaint, I conclude the investigation and hold that the complainant has not established facts upon which it can be presumed that he was subject to discriminatory treatment on the disability ground.
______________
Peter Healy
Equality Officer
26th January 2016