EQUAL STATUS ACTS
DECISION NO. DEC-S2017-016
PARTIES
Karol Doherty
v
Bus Eireann
File reference: ES/2014/0096
Date of issue: 13 April 2017
HEADNOTES: Equal Status Act – Discrimination in provision of services- Disability
1. DISPUTE
1.1 This dispute concerns a claim by Karol Doherty that he was discriminated against by the respondent on the grounds of his disability contrary to section 3 of the Equal Status Acts 2000 to 2004 in relation to the provision of services in terms of section 5 of the Act.
1.2 The complainant referred a claim to the Director of the Equality Tribunal on July 4th 2014 under the Equal Status Act. On January 9th 2017, in accordance with his powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Pat Brady, an Adjudication Officer/Equality Officer), for investigation, hearing and decision and for the exercise of other relevant functions of the Director (General) under Part VII of the Acts, on which date my investigation commenced.
1.3 Submissions were received from both sides. In accordance with Section 25 (4) of the Equal Status Acts and as part of my investigation I proceeded to a hearing on February 15th 2017.
1.4 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.
COMPLAINANT’S SUBMISSION
2.1 The complainant has a disability and is a wheelchair user and lives in Donegal.
2.2 On April 28th 2014 he had to undertake a trip to Dublin for the purposes of a hospital appointment. He had only been given short notice on the same day that he was due to travel to the hospital. He received the call at five o’clock in the afternoon saying that a bed had become available for him that evening.
2.3 The call came too late to catch the six pm bus from Derry and then he could not get through to the respondent’s base in Letterkennny by telephone. His nearest point of access to a bus to Dublin was at Strabane, Co Tyrone bus station which is under the management of Translink, the N. Ireland bus company. On arrival there and on attempting to avail of the accessibility features on the bus he was told that he could not do so as the driver had not been trained in the use of the lift attached to the vehicle, which was otherwise functional. The driver of the bus told the complainant that she could not use the lift and while the complainant offered to operate it this was not acceptable.
2.4 He eventually managed to gain access to the bus with the assistance of a Bus Eireann employee who had been called to assist by the driver of the bus.
2.5 He says that the failure of the respondent to ensure that the bus was accessible represented discrimination on the provision of a service contrary to the Equal Status Acts.
RESPONDENT’S SUBMISSION
3.1 The Letterkenny route is not yet a fully accessible route and the work needed to achieve this is funded by the National Transport Authority and carried out by local authorities. The station where the incident happened is not operated by the respondent but by the Northern Ireland bus company, Translink.
3.2 All the respondent’s drivers receive some training on the operation of the lift but they are not completely trained until the route they are operating becomes fully accessible. In some cases this is on a ‘station to station’ basis and does not provide for intermediate stops.
3.3 The respondent says that it will ensure that disabled passengers will have access to a fully accessible vehicle subject to their being given twenty-four hours notice given of intention to travel. This is necessary to make certain adjustments to the vehicle such as removing seats (although the complainant disputed this) and to ensure that a driver qualified to operate the accessible feature is available. It is a requirement of the company that a wheelchair be clamped while on board the bus.
3.4 Not all of the respondent’s drivers are equipped to operate the access lift and in this case the driver had not been fully trained.
3.5 The twenty-four hour notice requirement is also to establish that the destination is accessible and the respondent says that it is a common requirement of bus operators in the UK and throughout Europe. Evidence was given of the space needed to operate the access lift when parked and not all stops can accommodate this.
CONCLUSIONS AND FINDINGS
4.1 The question for decision here is whether the respondent discriminated against the complainant on the grounds of his disability or whether the arrangements it has in place represent ‘reasonable accommodation’.
4.2 Section 17 of the Equal Status Act provides for regulations requiring bus operators purchasing new vehicles to ensure that they are ‘readily accessible and usable by persons with a disability’. The respondent stated that since 2009 this has been government policy and followed by the respondent company.
4.3 Section 4.1 of the Equal Status Act requires a service provider 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 of the service.
4.4 Section 4.2 addresses reasonable accommodation providing that it would not be deemed reasonable if the cost of doing so was more than a ‘nominal’ cost. In this case the requirement to provide the physical facilities on the vehicles has been determined as a matter of public policy regardless of the cost.
4.5 However, the question then arises as to whether the respondent’s requirement for twenty-four hours notice is also reasonable, or takes the cost of doing so beyond the criterion of being nominal. Put another way it boils down to whether the respondent’s vehicles should be accessible at all times, without any requirement for prior notice.
4.6 The respondent stated that there were four issues arising in relation to accessibility.
4.6.1 The physical accessibility of the bus i.e. the lift.
4.6.2 Driver training
4.6.3 ‘Ground‘ infrastructure i.e. the bus stop or station, and
4.6.4 The need to remove seats to create space for the wheelchair user.
4.7 In this case, the bus was accessible but the driver had not been trained in the operation of the lift. The ground infrastructure was suitable at both ends of the journey but the seats had not been removed to enable the wheelchair to be clamped in place for the safety of the disabled passenger. (I am assuming that this is an insurance-driven requirement).
4.8 But a central consideration is the twenty-four hour requirement to enable the seats to be removed. Would it be reasonable that the respondent’s buses should be fully accessible to persons with a disability at all times and stops?
4.9 The respondent stated that it would reduce capacity for other travellers and that it would be outside the parameters of reasonable accommodation to require it to do so. It would mean that its fleet would operate at reduced capacity to provide for a situation that arises only very infrequently, that is, where a person with a disability needs to travel at less than twenty four hours notice. All disabled travellers in a position to give notice can be accommodated.
4.10 I turn therefore to the two sections of the Equal Status Act quoted above. One requires vehicles to be ‘readily accessible and usable by persons with a disability’ and the other (Section 4.1) requiring a service provider 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 of the service.
4.11 Does the requirement to give twenty four hours notice meet the standard of ‘readily accessible’ and if not would it be unreasonable to require the respondent to ensure immediate access for all disabled travellers at all times regardless of notice?
4.12 These provisions, taken together, undoubtedly involve some recognition that the needs of a disabled passenger are subject to some restriction in only requiring the service provider to do ‘all that is reasonable to accommodate the needs of a person with a disability’. Indeed it might be said that there is an element of mutual contradiction in them. Is the need for what was in this case an urgent or very unusual requirement to travel outside the principle of ‘ready’ accessibility which is what the respondent is obliged to provide? The notion of ‘readiness’ is already constrained by the (in)frequency of the service for example. There appear to be about nine services per day and the last of these from Letterkenny is just before eight pm. Any person, whether with a disability or not, with an urgent need to travel outside the timetabled hours would not be in a position to do so
4.13 Having regard to the nature of the service being provided I must apply the reasonable accommodation and nominal cost principles in the respondent’s favour. I find that its requirement for twenty-four hour notice is reasonable and proportionate and fulfils the objective of ready accessibility for the generality of passengers with a disability who need to avail of the service.
4.14 Therefore, I find that it did not breach the Act.
DECISION
5.1 In accordance with Section 25 (4) of the Equal Status Acts I conclude this investigation and issue the following decision.
That the complainant has failed to establish his case and his complaint fails.
5.2 Accordingly I dismiss the complaint.
__________________
Pat Brady
Adjudication Officer
13 April 2017