ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002432/ ADJ-00002347

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 17/05/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

This claim refers to a complaint raised by a member of the public (the Complainant) in relation to refusal of services from a company providing bus/coach transport services (the Respondent). The complainant alleged that contrary to section 31 of the Equal Status Act, 2000 as amended (hereafter “the Act”) she was discriminated on the basis of her disability, and contrary to Section 4 of the Act where she alleged the provider of a service failed to do all that is reasonable to accommodate her needs by providing special treatment or facilities.

In accordance with 21 Section of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I enquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Complainant’s Submission and Presentation:

The Complainant submitted that in March 2013 she was issued with a free travel pass to the Free Travel Scheme operated by the Department of Social Protection. She was granted this pass on the grounds of a disability that was approved by the Department of Social Protection. The Complainant advised that she was undergoing treatment for cancer, and although she has been in remission since 2011 she is still required to attend regular CT scans in order to monitor her condition.

The Complainant maintained that on the morning of the 15^th September 2015 she had an appointment at a hospital in Dublin at 8:30am. She decided to avail of the 7:00am bus service of the Respondent in order to meet her appointment. The Complainant contended that she arrived at the Respondent’s designated bus stop at a named location and when the bus arrived at 7:10am a queue for passengers had formed. She alleged that she alighted the bus where she was third in the queue, with a further three people behind her. She contended that when she entered the bus she showed her pass and proceeded to take up the seat. When heading for a seat, the Complainant maintained that the driver recalled her and requested to see her pass. He said to her “no I can’t take you” and informed her that he would only take passengers who were holders of prepaid tickets. She alleged that the driver then pointed to a man standing behind her and said “these people have jobs to go to and they get the bus every morning”. She was therefore asked to leave the bus which she did.

She advised that when got off the bus she waited at the bus stop and became very upset and she was told by another person at the bus stop that the next bus that was due would not take her to her destination. As a consequence, she left the bus stop and contacted her mother who drove her to another bus stop a number of miles away to avail of the 7:20am bus service operated by the Respondent in order to make her appointment on time. The Complainant advised that the process was very upsetting for her and furthermore she felt harassed by the manner the bus driver dealt with the situation at the time.

The Complainant contended that in accordance with Section 2 (1)(B) of the Act, she had a disability which means the presence in the body of organisms causing or likely to cause chronic disease or illness. Referring to the Goulding-v-O'Dougherty Case (DEC-S2009-073) she advised that there is no requirement that her disability be one which is obvious.

She further contended that contrary to Section 3(1)(a) of the Act she has been discriminated in that she was treated less favourably than another person is, has been or, would be treated in a comparable situation by being asked to leave the bus. In this regard the Complainant contended that she was refused the services of the Respondent and referred to a Thompson-v-Iarnród Éireann (DEC-S2009-015) where a person with a disability issued with a free travel pass was prohibited from purchasing tickets in advance using this pass, and where the complaint was upheld on the basis that the Complainant, as the holder of a free travel pass, is being denied access to the full range of ticket travel options which are available to a person who purchased a ticket from the Respondent in the “normal manner”.

Furthermore, the Complainant contended that contrary to Section 4 of the Act she was not provided with reasonable accommodation. In this regard the Complainant advised that the Respondent refused to provide her with special treatment by asking her to leave the bus and refusing her the service. In this regard the Complainant referred to Dublin City Council-v-Deans (Circuit Court Unreported 15^th April 2008) where the “reasonableness must be judged according to the context of the individual case”. The Complainant also referred to Thompson-v-Iarnród Éireann where in the provision of public transport services that restrictions imposed on the use of the holder of the free travel pass resulting in a significant degree of inconvenience and difficulty for the service user who is dependent on this mode of transport in order to travel to and from work were excessively and unduly difficult to allow the Complainant avail of the transport service.

The Complainant further argued that the practice of the Respondent to give preferential treatment to passengers holding prepaid tickets, and the restrictions placed upon the Complainant by holding a free travel pass, made it unduly difficult for the Complainant to avail of the services provided by the Respondent.

The Complainant also alleged that contrary to Section 11 (5)(a) of the act that the treatment she received had the effect of violating her personal dignity and creating an intimidating, hostile and degrading, humiliating or offensive environment for her. As such she maintained that she had been harassed by the actions of the driver by asking her to leave the bus. In this regard the Complainant referred to Kane and Kane-v-Eirjet (involuntary liquidation) DEC-S2008-026 where it was concluded that the attitude and manner in which a person with a disability was communicated to was totally inappropriate and unacceptable in the circumstances.

The Complainant also referred to King-v-Dublin Bus (DEC-2008-019) where comments made by a driver amounted to harassment as it was seen to be an attack on the Complainant’s dignity and created a hostile environment for the Complainant. The Complainant alleged that the statements from the bus driver where he allegedly said “no I can’t take you” and “these people have jobs to go to and they get this bus every morning” had the effect of violating her dignity and created an intimidating, hostile, degrading and humiliating environment for her. Equally she alleged that the conduct of the driver who requested that she disembark had the effect of violating her dignity and created an intimidating, hostile, degrading and humiliating environment for her.

Respondent’s Submission and Presentation:

The Respondent advised it was a family run business that operates a number of scheduled licenced services providing a high-frequency commuter service. It acknowledged that one of these services which the Complainant had referred to commenced operation in May 2004. The Respondent acknowledged that as part of the provision of the service the company participates in the free travel scheme provided by the Department of Social Protection.

The Respondent advised that under the scheme and its contract with the Department of Social Protection it is obliged to advise its drivers of the terms of the said contract which in particular require

1. To avail of free travel, a person must present a valid free travel pass as issued by the Department of Social Protection to the bus operator for inspection, prior to undertaking his/her journey.

2. This is both a revenue protection issue as regards public money and to ensure that this company continues to be allowed to offer “free travel” as part of their service.

3. And officer of the Department may without prior notification travel on any of their buses to monitor the level of free travel pass holders being carried and the number of journeys being undertaken.

4. Should the company, including any of their drivers, discover any instances of free travel passes being abused, “the pass concerned should be confiscated and returned to the Department along with a written report of the situation”.

On that basis, the Respondent advised that it was obliged to comply with the above requirements and that the only opportunity to do so is when a person enters the bus and presents the pass. The Respondent advised that under these circumstances the driver must inspect the pass to establish that the person presenting the pass is the pass holder. This required the driver on the bus in questions (as with all busses where a pass is presented) to satisfy himself as to the identity of the person presenting the pass and where the person may be asked to confirm their identity. The Respondent inferred that this process occurs for all holders of free travel passes irrespective of the nature of them having the pass.

The Respondent confirmed that the Complainant presented herself along with a number of others with the intention of boarding the 6:30am service. The Respondent confirmed the bus would have arrived at the stop at around 7:10am at which time it had only two vacant seats remaining. The Respondent advised that the Complainant was the first person at the bus stop to board the bus, she presented her free travel pass at which point the driver identified that two other passengers at the stop were holders of prepaid tax saver tickets and were regular commuters who boarded the bus at this location.

The Respondent advised that drivers on early morning commuter services to Dublin, where there are insufficient seats to accommodate all passenger/passengers who wish to board the bus can give priority to the holders of such prepaid tax saver tickets. It advised that such discretion is only exercised on Monday to Friday where the driver is driving the first bus on that service and where at that time the service is serviced by another bus which follows shortly after the first bus.

The Respondent confirmed that the driver called the Complainant back having realised there were only two seats remaining, and informed her that he was going to give priority to the prepaid commuters and that there was another bus which would be arriving shortly and which would have sufficient capacity to accommodate her and any other passengers remaining at the stop. The driver in his evidence also maintained that he did not say this to the Complainant in a manner to put her down, but that people with prepaid travel saver passes are given a priority and that is what he communicated to the Complainant at the time.

The Respondent provided records at the hearing which demonstrated that the bus a total of 58 passengers that morning where it only had a capacity of 56. It also confirmed that the bus behind carried a total of 40 passengers and therefore had seating capacity for another 12 persons and therefore seating would have been available for the Complainant when the bus arrived.

On that basis the Respondent argued that the Complainant was not refused travel by the company, and whilst she was not given a seat on the first bus she was offered an immediate alternative. It argued that this alternative was available within a short period of time, had available seating capacity, and would have brought her to her destination on time.

The Respondent advised that it had introduced the policy that holders of the prepaid tax saver tickets would get priority as there was an increased demand for the bus service some years earlier following the cancellation of a commuter train service due to repairs which were being carried out on a railway viaduct bridge. When this occurred there was an increased demand for its bus services. Due to the success of the bus service the service remained in high demand after the railway repairs were completed. To facilitate its regular passengers, the Respondent advised that it adapted the policy at that time that its regular passengers i.e. those holding prepaid tax saver tickets were to be given a priority, and to meet the new demands they also ran extra buses. On the morning in question a bus was due shortly after the service in question that had left the stop.

The Respondent argued that the fact a person is a holder of a free travel pass does not in itself identify them as having a disability. It advised the number of categories of individuals are entitled to a free pass under the Department of Social Protection Scheme and this scheme that is operated by the department does not just apply to people with disabilities, and it is not obvious why a person would hold a free travel pass. The Respondent argued that all that is required is for the driver to satisfy himself/herself that the person has a valid free travel pass and record the use of such a pass in order for the Respondent to be able to charge the Department of Social Protection accordingly.

The Respondent did not argue that the Complainant had a disability and accepted that was the case, but denied it refused a reasonable service because the Complainant has a disability, denied that it failed to reasonably accommodate the Complainant, or that the driver behaved in a manner that amounted to harassment, victimisation or discrimination of the Complainant. The Respondent further apologised if the Complainant was upset by what happened, but as another bus was due in the immediate minutes it said it did not deny her a service, and reiterated nor was its decision based on the Complainant’s disability.

The Respondent also objected to the Complainant adding further issues to her complaint at the hearing advising that the complaint form only referred to discrimination and that the additional complaint of harassment is outside the jurisdiction of the current hearing, and as it was only being made on the day of the hearing it is also out of time.

The Complainant objected to this position referring to jurisprudence and that the Adjudication is entitled to consider related matters. As the Respondent objected to this position the parties were invited to make submissions on this matter before a finding would be made.

These submissions were made and considered by me.

Decision:

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Section 38(A) of the Equal Status Acts, 2000 to 2004 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 she can rely on in asserting that prohibited conduct has occurred in relation to her situation. 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 this decision, I have taken cognisance of all the oral and written submissions made by the parties.

It is not denied nor is it in contention that the Complainant had a disability at the time of the alleged discrimination.

The Respondent is a bus company which under Section 5 of the Act provides a “service” which is available to the public generally and includes transport or travel.   Accordingly, under section 5 (1) of the Act, “a person shall not discriminate…in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public”.

As the relevant ground in the complaint is the disability ground, there are two aspects to the Complainant’s case which I must consider.

Firstly, whether the Complainant has been discriminated against because of her disability, in this case as defined by Section 3(1)(a) “where a person is treated less favourably than another person is, has been or would be treated in a comparable situation”; Section 3(1)(c) “where an apparently neutral provision would put a personreferred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”; and 3(2)(g) of the Acts and within the meaning of Section 5 as already described.

Secondly, I must look, in accordance with Section 4(1), 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 necessary, I must then consider Section 4(2) and whether the Respondent has failed to provide reasonable accommodation as if to do so would “give rise to a cost, other than a nominal cost”.

In considering the complaint, should I find discrimination has occurred I must then consider whether the issue of harassment can be heard.

General Discrimination

The Complainant made an allegation that she was treated in a discriminatory manner by the Respondent. In particular, she alleged because she presented to the bus driver a free travel pass under the travel scheme operated by the Department of Social Protection, which was issued to her due to her disability, she was discriminated against by the Respondent by being asked to leave the bus. The Complainant contended that by being asked to leave the bus she was not reasonably accommodated.

Section 3(2)(g) of the Act defines discrimination on the disability as between any two persons 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”).

Having regard to the wording of Section 4(1) of the Act, discrimination occurs in circumstances whereby the unreasonable refusal or failure of the respondent to provide special measures or facilities makes it “impossible or unduly difficult” for the person to avail of the services on offer.

The Respondent advised that its rules regarding the use of free travel passes applied to persons of all categories, and not just to persons with a disability. In that regard it argued that its policy was to ensure people who held prepaid tax saver tickets were given a priority on boarding the bus in question, and to facilitate those who did not hold such tickets a second bus for busy routes was provided, and another bus did arrive shortly after the first bus on the morning in question. As such the Respondent maintained that its policy was objective and did not place the Complainant at a disadvantage to other persons not covered under the free travel pass scheme, or to other persons without a disability. It stated that other potential passangers were left at the bus stop due to the bus being full, and therefore the Complainant was not discriminated against due to her disability.

I find that the Respondent’s policy to favour holders of its prepaid regular travel pass on busy routes is objectively justified by a legitimate aim, and under the circumstances is appropriate. Having considered the evidence submitted I am satisfied the policy, once it is applied impartially which it appears to have been on the day in question, does not treat persons with a disability less favourably than those without a disability. Furthermore, and of particular significance in this case, it is noted the Respondent does provide another bus on the route in question shortly thereafter which ensures those not given a priority on the first bus are reasonably accommodated. Had the Complainant waited that morning another bus would have arrived, would have accepted her free travel pass, and would have brought her to her destination in time to make her hospital appointment. As such I find that conditions were in place that would have reasonably accommodated her.

I therefore do not find that the Respondent, on this occasion, unreasonably refused or failed to provide special measures or facilities that made it “impossible or unduly difficult” for the person to avail of the services on offer.

Accordingly, I do not uphold the Complainant was discriminated, treated differently, or treated less favourably under the circumstances than a person without a disability. On that basis I also do not find she was harassed.

I do not uphold the complaint and therefore find that the complaint fails.

Dated: 10 November 2016