EQUAL STATUS ACTS
DECISION NO. DEC-S2016-075
PARTIES
A Student
-v-
A Bus Operator
(represented by Doyle’s Solicitors)
File reference: et-153648-es-15
Date of issue: 15th November, 2016
1. Background to the Claim
1.1 The complainant referred a complaint to the Director of the Equality Tribunal under the Equal Status Acts on the 19th February, 2015. On the 22nd December, 2015, in accordance with his powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000 the Director General delegated the case to me, Enda Murphy, an Equality Officer/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act, 2000 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on the on 17th February, 2016 and 29th September, 2016.
1.2 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 84(3) of the Workplace Relations Act, 2015.
2. Dispute
2.1 The dispute concerns a claim by the complainant that she was discriminated against by the respondent on the disability ground in terms of Sections 3(1)(a) and 3(2)(g) contrary to Section 5 of the Equal Status Acts in relation to access to a service which is generally available to the public.
3. Issue of Jurisdiction
3.1 The complainant’s mother attended the oral hearing on 17th February, 2016 on the complainant’s behalf and indicated that her daughter was not in a position to attend the hearing on medical grounds. In the circumstances, I decided to adjourn the hearing and I requested the complainant’s mother to submit a report from complainant’s medical consultants to confirm the precise nature of her disability/illness and to provide an indication if she would be in a position to attend the hearing at a future date. The complainant’s mother subsequently furnished a report from the complainant’s medical consultant which confirmed that she has a psychological disability (namely anorexia) which had required a significant period of hospitalization prior to the initial hearing. The medical report also indicated that the complainant was not medically fit to attend an oral hearing on the grounds of her medical condition.
3.2 Having regard to the medical evidence submitted on behalf of the complainant, I wrote to the parties and drew their attention to the provisions of Section 20(b) of the Equal Status Acts which provides as follows:
“complainant” means –
(b) where such a person is unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part, his or her parent, guardian or other person acting in place of a parent”.
I afforded both parties an opportunity to forward written submissions on the issue of whether or not the complainant’s mother should be allowed to pursue the complaint on behalf of her daughter (the complainant) in accordance with the provision of Section 20(b) on the basis of her psychological disability. The respondent forwarded a written submission on this matter but no submission was made by or on behalf of the complainant. Having carefully considered this matter and based on the medical evidence adduced, I decided that the complainant was unable to pursue effectively the present claim under the Equal Status Acts by reason of her psychological disability. In the circumstances, I decided that the complainant’s mother is entitled to pursue the complaint on her behalf in accordance with the provisions of Section 20(b) of the Acts. Accordingly, the matter was rescheduled for hearing on 29th September, 2016 and the complainant’s mother attended and presented the case on the complainant’s behalf.
4. Summary of the Complainant's Case
4.1 The complainant, who resides in Co. Wexford and is a university student at a college in Dublin, frequently avails of the respondent’s bus service to travel to and from her residence to college. The complainant, as a person with a disability, obtained a Free Travel Pass in 2013 and has been using this pass since that juncture to travel back and forth by bus from her home to college. The complainant claims that she was refused access to the respondent’s bus service on the grounds of her disability on three separate occasions during the period from November, 2014 to December, 2015.
4.2 The complainant claims that the first incident occurred on 4th November, 2014 at 4:20 p.m. when she attempted to board the respondent’s bus travelling from the university she was attending to Co. Wexford. The complainant claims that she was the first person in the queue for the bus and when she attempted to board using her Free Travel Pass the bus driver instructed her to leave the bus. The complainant submitted that the bus driver refused to accept the Free Travel Pass despite the fact that there was 6/7 free seats on the bus and informed her that he was obliged in the first instance to take passengers who had a yearly pass or those who had prepaid tickets. The complainant submitted that she was left much shaken by this incident and as a result of her confused state she subsequently boarded the bus of a different operator which was travelling to a different destination.
4.3 The complainant claims that the second incident of discriminatory treatment occurred on 11th December, 2014 when the bus driver again refused to accept her Free Travel Pass and allow her access to the bus. The complainant submitted that the third incident of discriminatory treatment occurred on 7th October, 2015 when she was again refused access to the respondent’s bus service by the bus driver while attempting to avail of the Free Travel Pass. The complainant claims that on this occasion she was refused access by the same bus driver who had refused her access on the first occasion. The complainant claims that she was treated in a very disrespectful manner by the bus driver on both of these occasions and that he threw the Free Travel Pass back to her after refusing to allow her board the bus.
4.4 The complainant submitted that the respondent’s refusal to allow her access its bus service on these three occasions on the basis that she was the holder of free Travel Pass amounts to discriminatory treatment on the grounds of her disability.
5. Summary of the Respondent's Case
5.1 The respondent company is a private bus operator and it provides a bus service from the university where the complainant is a student to a location near her residence in Co. Wexford. The respondent submitted that any person using its bus service is subject to the company’s Terms and Conditions which specifically provide for the use of the Department of Social Protection Free Travel Passes. The respondent submitted that the Free Travel Pass Scheme was designed to utilize spare capacity on scheduled services and that all passengers, whether prepaid ticket holders, cash payers or holders of a Free Travel Pass are subject to the respondent’s Terms and Conditions when using its services. The Free Travel Pass provided by the Department of Social Protection is given to many different categories of persons including those with a disability. However, this travel pass does not provide that the persons who hold one have an automatic right to have a seat on a bus over a person who has already paid and reserved their seat.
5.2 The respondent submitted that the complainant has used its bus services on numerous occasions and on each occasion there was availability on the bus she has been afforded access to a seat. The respondent submitted that on the first occasion of alleged discriminatory treatment (on 4th November, 2014) five passengers boarded the bus at the stop where the complainant sought to gain access. These passengers all boarded with prepaid tickets. There was one seat left on the bus which was reserved for a passenger with a prepaid ticket who was boarding the bus at a later destination. The bus driver was obliged to hold this seat for the passenger who had already reserved and paid for a ticket, and therefore, was not in a position to allow the complainant or any other person with a Free Travel Pass to avail of this seat.
5.3 The respondent submitted that on the second occasion (11th December, 2014) its records have confirmed that two passengers with Free Travel Passes boarded the bus at the stop where the complainant sought access. There were also two other people who boarded the bus with prepaid tickets and those who paid with cash. There was also a seat on the bus which was reserved for a passenger with a prepaid ticket who boarded at a later destination. The respondent disputes the complainant’s contention that she was refused access on this occasion and claims that she actually got a seat on the bus. The respondent claims that it is able to verify this information from reports supplied by the National Transport Authority ticketing system which is the regulatory authority for the industry. The respondent submitted that on the third occasion (7th October, 2015) its records confirm that sixteen people boarded the bus with a prepaid ticket at the stop where the complainant was waiting. The respondent claims that the complainant was offered a seat on this occasion but refused it.
5.4 The respondent submitted that it has engaged with the complainant at all times in relation to complaints she made in relation to these incidents in order to try and address any concerns she has raised arising therefrom. The respondent denies that the complainant was subjected to discrimination on the grounds of her disability contrary to the Acts on any of the dates in question.
6. Conclusions of the Equality Officer
6.1 The Equality Officer/Adjudication Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
Discriminatory Treatment
6.2 In the present case, the complainant has anorexia and I am, therefore, satisfied that she is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts. The complainant has claimed that she was discriminated against by the respondent on the grounds of her disability as a result of the respondent’s alleged refusal to allow her access to its bus service on three separate occasions. The respondent denies that it discriminated against the complainant on the grounds of her disability in relation to any of these incidents. The respondent asserts that the complainant was attempting to avail of its services on these occasions while using a Free Travel Pass, and therefore, was subject to the same terms and conditions that apply to all other passengers when using such a pass regardless of whether or not they have a disability. Therefore the question that I must decide in the present case is whether or not the complainant was subjected to less favourable treatment on the grounds of her disability contrary to the Equal Status Acts in terms of the respondent’s alleged refusal to allow her access to its bus service on the dates in question.
6.3 The alleged discriminatory treatment in the present case relates to the complainant’s claim that she was refused access to the respondent’s bus service on three separate occasions, namely 4th November, 2014, 11th December, 2014 and 7th October, 2015. The respondent accepts that the complainant was not afforded access to the bus on the first occasion but denies her contention that she was refused access on the latter two occasions. It was not in dispute that the complainant was the holder of a Free Travel Pass and that she attempted to avail of the respondent’s bus service on the dates in question while using this pass.
6.4 In considering this issue, I note that the Free Travel Scheme is a non-statutory scheme operated by the Department of Social Protection and it allows certain categories of persons including persons aged 66 years or over and those in receipt of certain types of disability benefits to travel free of charge on public transport and on bus services provided by certain private operators (including the respondent). Therefore, the Free Travel Scheme is available to certain categories of persons both with and without a disability. The respondent’s Terms and Conditions of travel clearly state that “if the bus is nearing capacity, passengers with (the name of the Respondent) prepaid tickets including return tickets, tax saver tickets, Flexi 10 tickets, weekly tickets and internet bookings will be taken before passengers with Department of Social Welfare Passes or those paying cash. Passengers with Department of Social Welfare Passes or those paying cash are boarded on a first come first served basis”. It is therefore clear that holders of a Free Travel Pass do not have an automatic right to travel on the respondent’s bus service and that intended passengers with a prepaid ticket will be afforded preference in the event of any particular bus nearing capacity.
6.5 Having regard to the evidence adduced, I am satisfied that the passengers who were afforded access to the bus ahead of the complainant on the 4th November, 2014 had prepaid tickets and were therefore entitled to preferential treatment in terms of access to the bus to those passengers intending to travel by virtue of a Free Travel Pass. In the circumstances, I find that the reason why the complainant was not afforded access to the bus on this occasion was not in any way related to her disability but rather was directly attributable to the fact that she was the holder of a Free Travel Pass. It is clear that the holder of a Free Travel Pass can be a person either with or without a disability and that the respondent applies the same rules to all persons holding a Free Travel Pass who wish to use its services irrespective of whether or not the person has a disability.
6.6 There was a dispute between the parties as to whether an actual refusal of service occurred on the two other occasions in question in respect of which the complainant claims she was refused access to the respondent’s bus service (namely on 11th December, 2014 and 7th October, 2015). The complainant, on the one hand, claims that she was refused service on both of these occasions on the basis that the bus driver would not allow her to board the bus using the Free Travel Pass. The respondent, on the other hand, denies the complainant’s contention that she was actually refused access on either occasion and claims that its records confirm she was in fact afforded access on these occasions. On balance, I prefer the respondent’s evidence regarding the events that occurred in relation to these two incidents and I am satisfied that the complainant was not refused access to the service on either occasion. In this regard, I heard oral evidence from the bus driver regarding the incident on 7th October, 2015 and I have found his evidence to be very clear and credible regarding the interaction that took place with the complainant on this occasion. The complainant was not in a position to adduce direct evidence in relation to either of these incidents and while I am not precluded from accepting the evidence that was given on her behalf, I have found the respondent’s evidence (including that of the bus driver) to be more reliable and compelling in the circumstances.
6.7 I therefore find that the complainant was not treated less favourably than another person, either without a disability or with a different disability would have been treated in a similar situation in relation to these incidents. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in the present case.
Reasonable Accommodation
6.8 In the case of disability in considering whether discrimination occurred, consideration must be also be afforded to the issue of the provision of reasonable accommodation to a disabled person within the meaning of Section 4 of the Equal Status Acts. The provisions contained within this section of the Acts require the respondent to do "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities". This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not do everything it reasonably could do to accommodate her needs as a person with a disability by providing her with special facilities or measures to access its services. In considering this issue in the context of the present case, I note that the complainant did not adduce any evidence to suggest that she had any difficulty or that she required any special treatment or facilities to physically access the respondent’s bus service on account of her disability. Indeed, I note the respondent’s uncontested evidence that the complainant had, in fact, been afforded access to, and had availed of, the respondent’s bus service without any difficulty on numerous other occasions while using her Free Travel Pass when there was spare capacity on the bus. In the circumstances, I find that the question of providing special facilities or measures for the complainant to access the respondent’s bus service does not arise in the context of the present case.
7. Decision
7.1 In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 3(2)(g) and 4(1) of the Equal Status Acts.
_________________
Enda Murphy
Equality Officer/Adjudication Officer
15th November, 2016