DEC-S2016-064

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-064

PARTIES

A Complainant

-v-

A Statutory Body

FILE NO: et-158530-es-15

Date of issue: 25th of October, 2016

1. Dispute

This dispute involves a claim by the complainant
that he was discriminated against by the respondent, on grounds of disability and victimisation contrary to section 3(2) of the Equal Status Acts 2000-2015. There is also a claim of failure to provide reasonable accommodation.

Background

2.1 The complainant, referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 7th of August, 2015. The complainant, who is deaf, submits that he was discriminated against by the respondent in respect of his attempts to get a motor bike on the road. He also submits that the respondent did not provide him with reasonable accommodation for his deafness and that he was victimised by the respondent.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 4th of April, 2016 to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 4th of May, 2016. Final correspondence in relation to this matter was received on the 30th of August, 2016.

2.3 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 84 of the Workplace Relations Act 2015.

Summary of complainant’s case

3.1 The complainant submits that

he is deaf and has difficulty communicating with people,

he applied to the respondent for an exemption from Initial Basic Training (IBT) when he was seeking to obtain a motorcycle licence,

his application for the exemption was unsuccessful,

the respondent failed to reply to his queries in a timely manner and this is due to the fact that he is deaf,

he engaged the services of an Approved Driving Instructor (ADI), Mr. M, who was unwilling to facilitate him and he submits that this was due to the fact that he was deaf,

he complained to the respondent about the difficulties he encountered with the ADI, Mr. M, on a number of occasions up to March 2015, but the respondent did not take any action in this regard,

the complainant was unable to commence his training due to the failure of the ADI to facilitate him which and this resulted in a six month delay in commencing his training despite having been issued with his learner permit,

he engaged a second ADI, Mr. G who did facilitate him and who accommodated his disability,

the complainant passed his Initial Basic Training (IBT) with the help of the second ADI.

4. Summary of Respondent’s case

4.1 The respondent submits that

the complainant applied for and was refused an exemption from Initial Basic Training (IBT) in respect of his application for a motorcycle licence,

exemptions from IBT are governed by legislation and the respondent can only grant exemptions where applicants meet the requirements set out in the legislation,

the complainant did not meet the requirements for an exemption from IBT,

the respondent, having received the application from the complainant, assessed his application in accordance with the requirements and responded to him, advising him that his application for exemption was unsuccessful,

every effort was made to keep the complainant informed during the process,

the respondent replied promptly to all communications issued from the complainant and in many instances replies issued the following day,

the complainant advised the respondent that he had engaged the services of an ADI who was unwilling to facilitate him due to his deafness,

the respondent advised the complainant that it does not employ ADI’s but that it does grant licences to practice to ADI’s and so can only offer guidance to ADI’s in respect of facilitating individuals in learning,

the respondent itself does provide special measures to facilitate people with disabilities in taking their driving test as this is a service offered directly by the respondent.

5. Conclusions of the Equality Officer

5.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability and on the victimisation ground, in terms of sections 3(2) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

5.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

5.3 Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(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”),

5.4 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/she can rely in asserting that the 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. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

5.5 It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

5.6 The complainant advised the hearing that he is deaf. He stated that he can hear to some extent with hearing aids and lip reading but that his deafness is quite severe and he added that he is in the process of getting a cochlear implant above in Dublin. The complainant advised the hearing that he also has epilepsy, which is controlled by medication. The hearing of the claim was conducted with the assistance of a Speed Typist. I am satisfied from the totality of the evidence adduced that the complainant is a person with a disability for the purpose of the Acts.

6. Discrimination on grounds of disability and failure to provide reasonable accommodation.

6.1 In making my decision I must 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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, written and oral, made to me by the parties to the case.

6.2 The complainant has also submitted a claim of failure to provide reasonable accommodation. In this regard the relevant sections of the Equal Status Acts are sections 4 (1) and 4 (2):

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.

(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.

6.3 The complainant advised the hearing that he has a full driver’s licence in respect of driving a car and that he had a motorcycle licence many years previously. The complainant advised the hearing that he has a passion for motor cycles and that he wanted to ‘get back on the road again’ but that he had to firstly get his licence, beginning with a learners permit or provisional license. The complainant told the hearing that he had initially hoped he might be exempt from undergoing the Initial Basic Training (IBT) due to the fact that he had held a license before and he was hoping that the respondent might grant him some kind of exception to go straight on the road without the IBT. The complainant told the hearing that he applied to the respondent for such exemption but that he was advised that he would need the IBT despite having previously held a licence. The complainant told the hearing that the respondent did not reply to his queries in a timely manner and that he felt ostracised due to this treatment.

6.4 Witness for the respondent, Mr. D advised the hearing that the aim of the respondent body, is to save lives and prevent injures by reducing the number and severity of collisions on the road. Mr. D stated that the functions for which the respondent is responsible are set out in the Road Safety Authority Act 2006, and include driver testing and licensing, training, vehicle standards and certain enforcement functions, road safety promotion, driver education and road safety research. Mr. D advised the hearing that the respondent’s function in relation to driver testing and licensing is derived from the Act, under the SI number 681 of 2011 Road Traffic, courses of instruction, and motor cycle regulations 2011. Mr. D advised the hearing that these regulations require motorcycle learner permit holders to undergo an Initial Basic Training Course (IBT) where a person who is issued with a learner permit, A, should undergo an IBT course in respect of the vehicle category he or she wants to drive and B, should not drive that vehicle in a public place unless he or she is, driving the vehicle while taking part in an IBT course for that category of vehicle or holds an IBT certificate in respect of the category of vehicle being driven and carries the certificate with him or so while so driving. Mr. D added that under regulation 19.3 of the driver licensing regulations, an application for a learner permit in respect of a category of vehicle is regarded as an application for a first learner permit in respect of that category unless the applicant held a provisional license learner permit in that category at some time within the period of five years preceding the date of application. Mr. D advised the hearing that the complainant did not meet the requirements for exemption from IBT.

6.5 Witness for the respondent, Mr. D advised the hearing that the complainant had sent the respondent letters dated the 13th and 14th of October 2014 which the respondent received on the 16th and 17th of October respectively. The complainant had in these letters requested an exemption from IBT and requested that he be issued with a motor cycle license due to his prior motorcycling and licensing history. Mr. D advised the hearing that the complainant could not be granted such exemption as the IBT is a legal requirement, which ensures that people have gained the required competence to ride their motorcycle safely in today's road environment and it is in place to protect the safety of the motorcyclist and other users. Mr. D added that in order to ensure that the legal requirements of the Road Traffic Act are met, any request for exemption from regulatory driver competency training must be carefully assessed to fully check qualification criteria for the exemption.

6.6 The complainant, Mr. S, in his complaint to the Tribunal has expressed his dissatisfaction with the period of time it took, approximately four weeks, for the respondent to reply to his initial letter, however witness for the respondent, Mr. D told the hearing that this time frame is not unreasonable when taking into account the volume of queries, which are received into the Driver Testing and Licensing Section and the ADI examiner sections alone on a weekly basis. Mr. D indicated that an average of 7,500 phone calls are directed into the customer care centre weekly and that driver testing and licensing and ADI examiners process an average of 2,000 communications weekly. Mr. D advised the hearing that following this initial research assessment in respect of Mr. S’s application for exemption the respondent engaged with the complainant regularly and consistently in relation to his queries. Mr. D advised the hearing that the respondent often replied to emails from the complainant the next day following receipt of such queries. The respondent submitted a table containing details of communications between the complainant and respondent during the period from 16th of October, 2014 to the 17th of December, 2014, during which there were a total of fourteen exchanges of correspondence between the complainant and respondent seven from the complainant and seven from the respondent. The complainant did not dispute this evidence.

6.7 Based on the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not discriminated against by the respondent on grounds of his disability in relation to this matter and that the respondent’s treatment of the complainant does not amount to a refusal or failure 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.

7. Complaint re Approved Driving Instructor (ADI)

7.1 The complainant advised the hearing that he contacted an approved IBT instructor near to where he lives but that the instructor seemed to be reluctant to fit him. The complainant submits that this is due to the fact that they were required to use a radio and the complainant due to his deafness could not use a radio. The complainant told the hearing that the instructor Mr. M did not return his emails or text messages and was reluctant to help him.

7.2 The complainant advised the hearing that he then decided to find another instructor Mr. G to assist him and that this instructor went to great lengths to fit him in. He stated that they did the IBT one to one, and then he did the lessons on the bike the complainant also stated that the instructor would go to the trouble of writing things down for the complainant when needed. The complainant told the hearing that this instructor also used a combination of hand signals when they went on the road in order to avoid the problem with radio communication with which the complainant had difficulty. The complainant stated that following this he got his IBT and stated that he had since passed his driving test and attained his motorcycle licence.

7.3 The complainant advised the hearing that the first instructor he had contacted was Mr. M. He stated that Mr. M did not facilitate him and was reluctant to fit him in and was not returning his emails or text messages. The complainant when questioned at the hearing as to how many text messages or emails he had sent to Mr. M told the hearing that he had emailed Mr. M on 29th of October 2014 and had received no reply to this email. He stated that he had also sent a text message to Mr. M to which he did not receive any reply.

7.4 Witness for the respondent Mr. D advised the hearing that ADI’s are not in direct employment of the respondent and that in the event of any query from any individual or ADI requesting information on accessibility, the respondent can only provide advice on a case-by-case basis. Mr. D advised the hearing that once the complainant, Mr. S advised the respondent of his difficulties with the use of radios due to his hearing aids, the respondent made further inquiries and provided Mr. S with advice based on a limited number of previous cases in driver testing on how hard of hearing clients had adapted their use of radios when undertaking their driving test. Mr. D added that the respondent does not however have the required medical expertise to issue any instruction on the specific methodology on how to use radios when wearing hearing aids and the respondent advised the complainant to seek medical advice on his personal hearing condition before engaging the use of radios for IBT.

7.5 Mr. D advised the hearing that the complaint made by Mr S, regarding his engagement with an ADI and seeking suitable training methods for his IBT had been lodged with the respondent but that the issue was with the individual ADI who is not in the direct employment of the respondent. Mr. D added that although the respondent does advise all ADI’s of their obligations to provide an accessible service to all of their customers, the respondent cannot prescribe the exact methodology to be used for adaptation of learning approaches to balance an individual's learning style together with a trainers training style.

7.6 Witness for the respondent, Mr. D told the hearing that the respondent empathises with the complainant’s frustration in his experience with one ADI and regrets any upset the complainant felt due to the length of time it took for the respondent to fully review his case and provide clarification to him. Mr. D advised the hearing that the respondent has engaged fully with the complainant on all of his queries and his issues. Mr. D stated that the complainant had in his last communication with the respondent advised them that he had found another ADI with whom he was building a very good professional relationship with and that he had undergone his IBT training in preparation for his driving test.

7.7 Mr. D added that the issue here is not with the named respondent but rather with a private businessman, an individual driving instructor whom the complainant engaged. Mr. D added that although it is regrettable that the complainant was unhappy with his experience with this ADI, it does sometimes happen that people change from one driving instructor to another for a variety of reasons and are free to choose to do so. Mr. D stated that the respondent in such circumstances can only provide guidance and support and answer queries when they come in, which they did in this case.

7.8 Witness for the respondent, Ms. G advised the hearing that once the respondent became aware that the complainant had difficulties in his engagement with the driving instructor, Mr. M, the respondent did engage with Mr. M and looked at some research to find out what would be available to assist the complainant. The respondent stated that Mr. M had advised them that the focus of the complainant’s issue was around his application for exemption for IBT and the fact that the respondent had to assess and review the case for exemption for IBT before they could progress with looking at how they could facilitate the IBT training.

7.9 Witness for the respondent, Ms. G advised the hearing that the complainant’s initial communications with the respondent on the 13th and 14th of October, 2014 related to his query in respect of a request for an exemption from IBT. Ms. G stated that Mr. D had been assigned to deal with the query and had to ascertain the complainant’s license history in order to ascertain whether the complainant could be exempted from the IBT training. Mr. D added that once he had established that the complainant wasn’t exempt, the respondent looked at and researched ways in which they could assist him in terms of access to the training. Mr. D stated that the respondent provides guidance to ADIs on alternative methods of communications where it's not practical to use radios, like hand signals. Mr. D referred to the complainant’s evidence that he had, once he enlisted the services of a second ADI been provided with one‑to‑one instruction and that the ADI went to the trouble of writing things down for him, and using hand signals. Mr. D stated that it is in the respondent’s standard guidance to all ADIs to do that.

7.10 Mr. D, advised the hearing that the respondent provides a driving instructors handbook to all ADI’s and that this provides advice in respect of the ADI’s obligations to ensure that they give equal access to training for all people. Ms. G added that the instructor’s handbook, page 77 refers specifically to facilitating those who are deaf and hard of hearing but that all ADIs while they have the handbook, they then have to look on a case-by-case basis at the relationship that they are developing with their customer and how best to facilitate their particular needs. Ms. G stated that there is a lot of advice in the book on how to facilitate accessible training for different learning styles and for people with different abilities and disabilities and different approaches. She stated that advice is provided, but the respondent cannot prescribe for each person how to give the training as the respondent’s function is to grant licences to ADI’s to carry out work but they do not employ them and therefore cannot prescribe the service they provide but can provide guidance.

7.11 Ms. G advised the hearing that the respondent does have a lot of initiatives in place in their own direct services and that the complainant could when taking the driving test be provided with a Sign Language interpreter. Ms. G also stated that the respondent had, from the point of receiving communication from Mr. S on the 16th and 17th of October engaged extensively and comprehensively with the complainant in trying to facilitate and deal with his queries and issues.

7.12 Based on the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not discriminated against by the respondent on grounds of his disability and that the respondent’s treatment of the complainant does not amount to a refusal or failure 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.

8 Victimisation

8.1 The complainant in his complaint form to the Tribunal indicated that he was victimised. The complainant when questioned did not however, adduce any evidence to substantiate the claim of victimisation. I am thus satisfied from the totality of the evidence adduced in relation to this matter that the complainant has not adduced any evidence of adverse treatment on foot of an action defined in Section 3(2)(j) of the Equal Status Acts 2000-2015. Accordingly, I am satisfied, that the complainant was not victimised by the respondent in relation to these matters.

9. Decision

9.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.

the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and

the complainant was not discriminated against by the respondent on the victimisation ground contrary to section 3(2)(j) of the Equal Status Acts, 2000-2015, and

the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failureto 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.

___________________

Orla Jones

Adjudication Officer/Equality Officer

25th of October, 2016