EQUAL STATUS ACTS
DECISION NO. DEC-S2016-029
PARTIES
Mr Tim McMahon
AND
Transdev (LUAS)
File reference: et-152821-es-15 Date of issue: May 2016 HEADNOTES: Equal Status Acts 2000 to 2011–Reasonable Accommodation and Discrimination.
1. Dispute 1.1. This dispute concerns a claim by Mr Tim McMahon (hereafter referred to as the Complainant) who has a physical disability requiring the use of a mobility scooter, that the Respondent Transdev t/a LUAS, a Transport Company (hereinafter referred to as the Respondent), on 17th November 2014 failed to provide the Complainant with reasonable accommodation to enable him to board the transport.
1.2. The Complainant has made his claim on the grounds of disability contrary to Section 3 of the of the Equal Status Acts 2000 to 2011 (hereinafter referred to as the ‘Acts’) in regard to the Respondent’s alleged failure to provide him with reasonable accommodation, pursuant to Section 4 of the Acts when he was unable to access their services. The Complainant submitted that the Respondent in providing services had failed to meet its obligations under the Acts.
1.3. It is alleged that the driver of the transport closed the doors when the Complainant was attempting to board the transport, and the transport departed without the Complainant.
1.4. The Complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 27th January 2015. On 1st March 2016, in accordance with his powers under Section 75 of the Employment Equality Acts and under these Acts, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated the case to me, Gerry Rooney, an Adjudication Officer / Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts. This is the date that my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 8th April 2016.
1.5. This decision pursuant to Section 25(4) of the Acts is issued by me following the establishment of the WRC on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.
1.6. The Complainant represented himself, and his wife attended as a witness. The Respondent was represented by the driver, a transport manager, and a Health and Safety/Security manager. The Respondent also provided CCTV footage of the event at the hearing.
1.7. All the oral evidence presented, submissions made, and CCTV footage submitted before and during the hearing have been taken into consideration. I also indicated that I would be relying upon the key statutory provisions and relevant case law in my consideration of this matter.
2. Summary Of The Complainant's Submissions & Evidence 2.1. The Complainant alleged that on 17th November 2014 he entered the platform and the transport was standing at the platform with its doors open. He understood he had a number of minutes to dwell on the situation and whilst he initially intended to board the transport facing inwards he was concerned about his safety when exiting the transport so he decided to manoeuver his mobility scooter in order to reverse into the transport. When aligning the scooter on the platform to board the transport safely the Complainant alleged that lights on the doors flashed and the doors automatically closed before he could complete his manoeuver to embark. The Complainant immediately went to press the button on the door but they failed to open. The Complainant then progressed along the platform in an attempt to get the driver’s attention, however the transport departed.
2.2. The Complainant also alleged that when he spoke to another driver at the location he was initially told it was not his problem and eventually when he was provided with a contact number for the complaints department he subsequently rang it but it did not work. The Complainant maintained that he also spoke to a security guard who explained it was not a matter for him.
2.3. The Complainant also alleged that when he raised his complaint in an effort to resolve the matter his complaint was not dealt with sufficiently and where he received no contact from the transport company at the time he raised his complaint.
2.4. The complainant was therefore complaining that he was not reasonably accommodated by the manner in which the transport departed when he was attempting to board, and he was further discriminated against as his complaint was not dealt with in a satisfactory manner.
3. Respondent's Submission 3.1. The Respondent argued that the complainant came to the platform at 10:54:47am, the doors closed at 10:54:51am, and the transport departed at 10:55:57am. The Respondent also provided CCTV footage which recorded the approximate time of entry onto platform by the Complainant, and also records the Complainant moving up the platform and stopping his mobility scooter adjacent to one of the doors and where the doors can be observed closing in or around the time the Complainant had stopped. The CCTV footage shows the Complainant manoeuvring to press the door button after it closed, and then manoeuvring along the platform at speed to get the attention of the driver. The CCTV footage also records the transport departing with Complainant and his wife left standing on the platform.
3.2. The Respondent maintained that the driver is required to operate strict protocols in relation to his departure from the platform. The Respondent further contended that the time of departure of the train is notified to passengers on the platform and it is critical for the transport to leave the platform at the designated time, or very shortly thereafter. Once the driver is satisfied it is safe to depart he activates the departure procedures in which the doors automatically close after alerting passengers with audio and flashing lights. The driver must depart the platform shortly thereafter as the transport movement is notified to the city transport management centre which informs and monitors the network. The Respondent advised that the specific departure point where the incident occurred is a high priority area. Once a decision is made to depart, the driver activates the “request to start” button and the driver’s focus is then on what is ahead of him. It was maintained by the Respondent that in the location of the incident such attention is particularly critical for the safety of potential pedestrians and oncoming traffic. In effect once the driver is satisfied it is clear ahead the transport activation process commences.
3.3. In its evidence the Respondent’s driver stated that he did not observe the Complainant attempting to board the transport at the time. He was satisfied, having earlier observed the platform, that nobody was attempting to board the transport. Once he decides to activate the departure process the doors are automatically closed, and it is not possible to open them unless there is an emergency or the driver is instructed to do so by the Gardaí. The driver advised that he therefore departed on the belief it was safe to do so. Due to the automation of the departure process, and for general safety reasons, it would not be protocol to reopen the doors if a passenger wanted to board after the departure process is activated. It appears the driver has no discretion in relation to this matter. The driver’s discretion rests with the decision to activate the “request to start” process.
3.4. The Respondent also advised that its drivers are trained and are made aware of the needs of people with disabilities. In this regard the Respondent maintained that all its drivers are put through a robust training programme with regard to passengers and customer needs. The Respondent advised that drivers would be made aware of their need to cater for people who require extra attention, and where drivers will provide extra time for persons who, for example, are elderly or wheelchair-bound. In such circumstances an extension of 30 to 40 seconds will be provided before closing the doors if required. In addition the drivers would be assessed regularly where an Inspector will observe the driving and where the driver is also asked a series of mandatory questions from the Inspector. In cross-examination the Respondent acknowledged that it was unaware if awareness of the needs of people with disabilities was one of the mandatory questions asked. Also in his evidence the driver could not recall when he last received training in relation to the needs of people with disabilities. The driver advised that he did not see the Complainant and the departure process was activated based on his judgement that it was safe to do so. As he did not see the Complainant it was argued that there was no intent not to reasonably accommodate the Complainant.
3.5. In response to the handling of the complaint the Respondent maintained that the Complainant was not treated differently to any other complaint. It contended that the Complainant had been provided with a contact number, albeit acknowledging it may not have worked for the Complainant at the time. At the hearing the Claimant acknowledged that he was given the number which was written on a piece of paper by another driver.
3.6. The Respondent acknowledged receipt of the Complaint’s complaint and advised that the Complainant would have received standard acknowledgement to this complaint. The manager attending the hearing would have acted as the incident manager, reviewed the video footage, interviewed the driver, and drew his own conclusions that the driver operated the transport correctly on the day and did not conclude that the complainant was unreasonably accommodated. The Respondent advised that transport departed every 6 to 7 minutes and therefore alternative transport was available to the Complainant within a very short period of time.
3.7. The Respondent advised that it did activate a response letter on its complaint system to the Complainant after the incident manager had completed his review of matters. The Respondent could not account for the reason why the Complainant had not received the letter. The Respondent provided a copy of the letter and argued that as the system automatically generates such letters it is not aware as to why the Complainant did not receive the report and conclusions on the matter.
3.8. The Respondent maintained that it caters for over 90,000 passengers per day and its complaint system deals with all complaints in the same manner and it would not have discriminated against the Complainant in the handling of the complaint.
3.9. The Respondent offered an apology to the complainant and his wife for being upset with what they experienced, but maintained that it had not acted contrary to its obligations under the Acts, and that it did not fail to reasonably accommodate the complainant, or discriminate him in relation to how his complaint was handled.
4. Findings and Conclusions 4.1. The issues for decision are whether the Respondent failed to provide the Complainant with reasonable accommodation in terms of accessing its services, and whether the Complainant was discriminated against in the handling of the complaint by the Respondent.
4.2. Section 38A of the Acts sets out the burden of proof which applies to all claims of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.
4.3. Section 4 of the Equal Status Acts sets out the requirements for ‘reasonable accommodation’ as follows:
“(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.
(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.”
4.4. There is no dispute that the Complainant has a disability within the meaning of Section 2 of the Acts and that he is restricted in his mobility. It is also accepted that this complaint refers to access of a service within the meaning of the Acts. I therefore accept that the Complainant has a difficulty in accessing transport facilities, and in the day in question was dependent on a mobility scooter to access and use the Respondent’s services. I am also satisfied that having made a complaint about his experiences the Complainant initially was frustrated in trying to make contact with the Respondent’s complaint system, and subsequently did not receive the response to his complaint that was prepared by the Respondent’s incident manager.
4.5. The matter for me is to determine is whether, in accordance with Section 4(1), the Respondent did "all that is reasonable” to provide special facilities to the Complainant upon becoming aware of his particular difficulties subject to Section 4(2).
4.6. Findings in Relation to the Reasonable Accommodation 4.6.1. Having established that the Complainant has a disability I am satisfied the evidence clearly supports that he attempted to access the transport services provided by the Respondent but that due to the actions of the driver the Complainant was unable to access the transport. Whilst acknowledging that the Complainant may have arrived within a short period of time before the departure of the transport, I am also satisfied that having reviewed the CCTV footage that the platform was not congested. Therefore it is reasonable to conclude that the driver should have observed the Complainant on the platform and getting ready to embark the transport prior to activating the “request to start” process. I am also conscious of the evidence from the Respondent which stated the driver has some discretion in relation to activating the “request to start” process.
4.6.2. Having reviewed the evidence I find that the driver did not exercise sufficient care in his observation of the platform with regard to affording the Complainant, a person with a disability, with a reasonable opportunity to embark the transport. It is clear the Complainant was getting ready to embark the transport when the driver decided to activate the system. Whereas an able bodied person may have been in a position to safely embark the transport in view of the time allowed before the doors close, the Complainant by virtue of his disability was denied that opportunity. Whilst I am satisfied the driver in no way intended to prevent the Complainant from boarding the transport I am persuaded that his actions were such that the Complainant was not reasonably accommodated under the circumstances.
4.7. Findings in Relation to Discrimination 4.7.1. With regard to the handling of the complaint by the Respondent I am satisfied that the Respondent dealt with the complaint in accordance with its complaint procedures and that an incident report was issued which the manager responsible understood and expected that it would be delivered to the Complainant. I am also satisfied that the Complainant was provided with a number to contact by another driver although that number seemed to have an error. In the absence of any other evidence I am satisfied this was human error that could be experienced by any person and as such it would be unreasonable to hold this against the Respondent.
4.7.2. Whilst acknowledging that the Complainant contended he did not receive the response to his complaint, I am satisfied that the Complainant was not treated less favourably than somebody without a disability in this regard. The failure of the Complainant to receive the incident report, whilst upsetting for the Complainant, appears to be an error rather than any act of wrongdoing by the Respondent. 5. Decision 5.1. Having investigated the above complaint, and having concluded my investigation, I hereby make the following decision in accordance with Section 25(4) of the Acts:
5.1.1. I find that the Respondent discriminated against the complainant on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and 4(1) of the Acts and contrary to Section 5(1) of the Equal Status Acts in that the Respondent has failed to provide the Complainant with reasonable accommodation in the context of this complaint.
5.1.2. I order the Respondent to pay to the Complainant the sum of €700 for the distress caused to the Complainant as a result.
5.1.3. I recommend the Respondent review its training of drivers to make it a mandatory observation, when assessing ongoing driver competencies, to assess driver awareness of their responsibilities regarding reasonable accommodation for people with disabilities.
_________________________
Gerry Rooney
Equality Officer/Adjudication Officer
26 May 2016