EQUAL STATUS ACTS 2000-2011
DECISION NO. DEC-S2017-028
PARTIES
Rachel Creevey
(Assisted by Gary Lee, Solicitor & CEO, Centre for Independent Living)
-AND-
Córas Iompair Éireann
(Represented by Mairead Carey BL, instructed by Hugh Hannon, Solicitor for CIE)
File Reference: ES/2014/0144
Date of Issue: 12th September 2017
1. DISPUTE
1.1 This dispute concerns a complaint by the Complainant, that the Respondent discriminated against on her on the ground of disability and/or failed to provide her with reasonable accommodation to enable her to access the DART train service as a wheelchair user, contrary to Sections 3(2)(g), 4 and 5 of the Equal Status Acts 2000-2011 (hereinafter also referred to as ‘the Acts’).
1.2 Having sent a notification pursuant to Section 21 of the Acts, the Complainant referred a complaint to the Director of the former Equality Tribunal (now of the Workplace Relations Commission, hereinafter ‘the WRC’) on 11th July 2014. On 25th January 2017, in accordance with her powers under Section 16 of the Workplace Relations Act 2015, the Director General delegated this case to me, Aideen Collard, an Adjudication 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. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 23rd February 2017. The Complainant was assisted by Mr Gary Lee, Solicitor and CEO from the Centre of Independent Living whilst the Respondents were represented by Mairead Carey BL instructed by Mr Hugh Hannon, Solicitor for CIE. Along with key statutory provisions and relevant case law, all evidence presented, submissions and documentation submitted before and during the hearing have been taken into consideration.
1.3 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.
2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE
2.1 The Complainant gave evidence outlining the nature and severity of her disabilities which require use of a motorised wheelchair. She outlined an impressive number of third level qualifications and confirmed that she works in the disability field and is also involved in pubic campaigning for improved disability awareness. She lives near a DART station but tended to opt for the bus service around the corner as pre-booked assistance is not required. However, the bus service gives rise to the inconvenience of waiting unsheltered in inclement weather conditions and having to take several buses to reach her destination when the DART would be more direct. She confirmed that she was alleging discrimination on the ground of disability and/or a failure to provide reasonable accommodation against the Respondent generally and specifically in relation to two incidents in 2014. It was accepted that a latter incident arising in 2016 post-dated this claim and was therefore outside my jurisdiction to adjudicate upon.
2.2 The Respondent operates the DART (Dublin Area Rapid Transit) which is an electric commuter rail system running along the coast of the Irish Sea between Malahide or Howth in North County Dublin and Greystones in County Wicklow. Unlike modern purpose-built trams where the doors line up with the platform, owing to the curved shape and antiquity of platforms and variations between carriages, there is a gap and/or variance in level between the doors and platform. It is common case that the DART cannot feasibly be adapted to enable wheelchair users to enter/exit carriages without the requirement for human assistance as it is not possible to install an automatic ramp owing to the variances in gap and height. As many of the Respondent’s DART stations are unstaffed for some or all of the time, wheelchair users are required to ring up to 24 hours in advance to arrange for assistance with boarding/disembarking a train.
2.3 The Complainant gave evidence of a typical journey by DART from her local station which requires ringing the station ahead to arrange for a member of staff to be at the platform for her scheduled train to assist her with boarding. She highlighted the various issues she faces including difficulties getting through, having to specify a particular time for her outward and return trains and being governed by those times along with physical issues that may arise en route to the station platform. In relation to the specific instances of discrimination complained of, she said that on 5th February 2014, she placed a call to her local DART station which was manned full-time to book assistance for the 12.58 train for a disability related event she had to attend the following day at a location in the City Centre close to the DART. She got no reply the first few times she tried before receiving a call back from a member of staff. After outlining her travel plans, he told her that she would not be able to travel at the requested time as there would be nobody manning the station between 12pm and 3pm the following day. Naturally she was not pleased and pointed out that according to the Respondent’s website, the station was manned on a full-time basis. He acknowledged this and said that it was not possible to accommodate her owing to staffing problems. He offered her the option of boarding a train before 12pm when there would definitely be someone at the station to assist. She declined the offer and told him that it did not matter.
2.4 The Complainant was also unhappy with the Respondent’s response to her complaints in relation to the manner in which she had been treated on this occasion. On 18th February 2014, she received a call from a District Manager with the Respondent who was apologetic and explained that the station in question had not been manned as the Depotman there had a hospital appointment and there had been no-one to fill in for him. The Complainant felt that this was not really a proper excuse and told the Manager that this was not the first instance where there were no staff available in the station. He had been pleasant and did not deny that this was the position, referring to financial resource difficulties and constraints. When the Complainant explained her frustrations and dependency upon there being someone available to enable her to use the DART, the Manager gave her a list of phone numbers including his own personal mobile number that could be used when planning future trips so that this did not happen to her again. In her submissions, she stated: “while this might solve the problem for me, it would not rectify the situation for other people with disabilities trying to use the DART service.”, and was an unsatisfactory solution. Following that incident and representations made on her behalf, the Respondent made a dedicated number available online with reassurance that a member of staff would attend regardless of the particular opening hours of the station. The Complainant initially felt that some progress had been made but after speaking to fellow-users, discovered that the Manager’s response had been a standard response to anyone who complained about the service and it was this revelation that led her to refer this complaint.
2.5 The second incident arose on 29th May 2014 when the Complainant had planned another trip to the same location. She followed the procedure outlined on the Respondent’s website at least 24 hours in advance. She called the number 16 times with only 7 calls connecting but ultimately received no answer. She then tried the number furnished to her for the destination station but it rang out. She called the dedicated number again, this time getting through to someone when she opted for the information line instead of the disability line. She found the person she had spoken to be rude and of no assistance. He said that she should have contacted her local station directly before putting her through to the dedicated line with no answer yet again. She made numerous other calls to the dedicated line and other numbers provided by the Manager to no avail and at a personal cost of €1.75. Eventually she reverted to calling her local station which was answered and her journey was arranged for the following day. In her written submissions she stated: “I’m happy to report that in this instance everything did work out fine, despite all the hassle I had to go through beforehand.” Reflecting on the fact she had arrived 10 minutes early and the Depotman had not been on the platform but had attended on time to assist her board the train she observed: “My trip had worked out fine but I couldn’t help thinking “what if another disabled person had come along before me and wanted to use the train?” How is this fair and equal for all??”
2.6 In addition to her own experience, the Complainant also referred to ongoing disability discrimination and lack of reasonable accommodation faced by wheelchair users availing of the Respondent’s DART train service. She contended that use of the DART service was dependent upon staffing hours and the diligence and good will of individual staff members. Unlike able-bodied customers who are free to use the DART whenever they want, wheelchair users have to give up to 24 hours’ notice via phone of the time of their arrival in order to receive assistance boarding/disembarking train carriages via a manual ramp. Wheelchair users are also dependent upon lifts at some DART stations being in working order. Currently only a small number of stations have full-time assistance and staff travel to unmanned stations to accommodate requests for assistance. Consequently, the freedom of movement for wheelchair users is greatly curtailed, for instance, if out socialising and using the DART service as their mode of transport, they are restricted to leaving on time for the scheduled train where assistance has been pre-booked. The Complainant said that she feels very strongly about this issue and her primary motivation for bringing this complaint is to highlight the difficulties faced by other wheelchair users. When asked what changes to the service were required to meet the level of accommodation she deemed reasonable for wheelchair users, she confirmed that nothing less than full-time manned assistance available at all stations sufficed.
2.7 Under questioning from Counsel for the Respondent, the Complainant accepted that she used the DART service infrequently and had no difficulties using her local bus service which was closer to her home. In relation to the incident of 5th February 2014, it was put to her that she had known the Depotman she had spoken to on 4th February 2014 as he had regularly assisted her at that station. She said she had not recognised his voice but accepted that it was him and he had always been very obliging in relation to requests for assistance. It was also put to her that he had offered to find a replacement for her required time but she had said it did not matter and there clearly had been a miscommunication. She refused to accept that. The Respondent’s position in relation to providing reasonable accommodation to persons with disabilities was also put to the Complainant. Counsel outlined the various initiatives being taken by the Respondent to improve its facilities for persons with disabilities. However, manning all DART stations full-time would require doubling its staff, costing several million euro per annum and was simply not financially feasible or viable. The Complainant refused to accept that anything less than having all the DART stations manned on a full-time based sufficed as ‘reasonable accommodation’.
2.8 In summary, the Complainant submitted that she had been treated less favourably than an able-bodied person would have been in relation to the two instances of discrimination set out above and more generally in relation to the requirement to give advance notice of travel by DART train to ensure assistance with boarding/disembarking, referring to Sections 3(2)(g) and 4 of the Equal Status Acts. She submitted that as “the national body with the responsibility for the provision of socially necessary public transport services” established under legislation, Section 26 of the Disability Act 2005 applies, providing for integrated access to public services and assistance accessing same for persons with disabilities if requested “where practical and appropriate”. She cited from the Department of Transport Sectoral Plan entitled ‘Transport Access for All’ published pursuant to Section 31 of the Disability Act 2005, last revised in 2012 in terms of the aspirations for accessible public transport services for people with disabilities within the shortest possible time. Likewise, accessible transport is key to ensuring autonomy and social inclusion for people with disabilities as envisaged under the National Disability Strategy. She also outlined the relevant provisions of International and EU instruments including Regulation (EC) No 1371/2007, the Charter of Fundamental Rights of the European Union, the UN Convention on the Rights of Persons with Disabilities (CRPD) and the EU Framework Directive, with particular reference to the right to equal access to transportation for people with disabilities.
3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE
3.1 Although not taking issue with most of the background facts save for the incident of 5th February 2014, the Respondent wholly refuted the Complainant’s assertions that she had suffered any discrimination on the ground of disability and/or that it had failed to provide ‘reasonable accommodation’. It was further asserted that the level of accommodation demanded by the Complainant was financially unviable.
3.2 The member of the Respondent’s staff who had spoken to the Complainant in relation to the incident on 5th February 2014 was a Senior Depotman employed by the Respondent and he gave evidence confirming his recollection of events that day. He said that he had returned a missed call to the station phone. The person on the other end whom he now knows to be the Complainant thanked him for calling her back. She confirmed that she had phoned to check if the station would have staff available for the following day to assist her with getting on the train as she was in a wheelchair. He asked what time would she be travelling at as the station would be unmanned from 12pm until 3pm that day. She replied that she was planning on catching the 12.58pm City-bound train. He had said that if she wanted to get an earlier train he would be there to assist her but she declined this saying she wanted to get the 12.58pm train. He then explained all her options to her before finishing up by saying that if she wants to get the 12.58pm train, he will arrange to have a member of staff there to assist her, to which she replied: “It’s ok, I’ll leave it.” He said that the Complainant had sounded frustrated during the phonecall but at no time had she mentioned the nature of the event she had wished to attend. Normally, he would have been in attendance at the station during this period as the only staff member manning the station but he had a hospital appointment at that particular time on 6th February 2014. He had tried to explain the situation without revealing the reason for his intended absence during his phonecall with the Complainant. He also confirmed that he had assisted the Complainant on various occasions over the preceding seven-year period and gave examples of when he had gone beyond the call of duty to assist her onto trains. Under questioning, he confirmed that although he had worked for the Respondent for 35 years, he had never received formal disability awareness training and his knowledge was more health and safety based.
3.3 The District Manager who had dealt with the Complainant’s complaint arising from the incident on 5th February 2014 also gave evidence on behalf of the Respondent. He confirmed his background in operations and customer care. Arising from the first incident complained of, he confirmed that he had given the Complainant various numbers to contact as fallback in the event that she had difficulty obtaining assistance. He was unaware of the second incident complained of on 29th May 2014. He also confirmed that of the 70,000 passengers who use the DART service daily, there are several regular wheelchair users requiring daily assistance whereby such arrangements to provide assistance are in place locally without issue. Notwithstanding the online advice to give 24 hours’ notice, wheelchair users making other journeys where assistance is not already in place can usually be accommodated within a few hours of placing a call. When a call is received in respect of an unmanned station, a member of staff is deployed to attend at the station in question to assist the wheelchair user with boarding/disembarking their requested scheduled train. He also outlined various initiatives currently being undertaken by the Respondent including providing more disability awareness training and more flexible rostering to reduce the notice period for wheelchair users requesting assistance as outlined in documentation furnished at the hearing. As 13 of the Respondent’s 31 DART stations are currently fully manned, he confirmed that it would require more than a doubling of staff costing several million euro to have all stations manned on a full-time basis. This is an impossibility owing to other financial pressures the Respondent is currently experiencing. The District Manager was questioned by and on behalf of the Complainant as to the various figures, users with a disability and initiatives being taken to assist persons with disabilities.
3.4 An Equality Officer for the Respondent gave more detailed evidence as to the measures in place to assist DART users with disabilities and initiatives to improve its infrastructure and services to ensure access for persons with disabilities. He said that the Respondent is constantly striving to improve access for all and is engaging in ongoing consultation and liaison with users and disability representative bodies, citing various examples. He also confirmed that its information booklet for persons with disabilities has been updated, disability awareness training has been rolled out for its staff and improvements have been made to its call centre to assist wheelchair users. Specifically in relation to this complaint, the Respondent is working to reduce the period of notice required for travel from 24 hours to 4 hours. Of the 10-15 complaints received per week, not many were in relation to access. He was questioned by and on behalf of the Complainant in relation to these initiatives and the costs. He agreed that not all staff had received disability awareness training owing to resource constraints and said that in an ideal world, everyone would have received training and he would like to see this happen but could not say when.
3.5 Overall and as confirmed in written submissions, the Respondent understands the difficulties and frustrations experienced by the Complainant when using its services. The incident of 5th February 2014 arose from a miscommunication with the Depotman whereby he understood that she did not wish to travel the following day. The incident of 29th May 2014 relates to an issue of poor customer service from a particular individual and cost of contacting the 1850 number but the Complainant had travelled on this occasion without incident. The issue of accessibility and its development is challenging for the Respondent owing to the nature and age of the infrastructure and rolling stock including the curved design of some platforms which creates a ‘gap’ necessitating assistance for wheelchair users. Part of the challenge is being cognisant of the safety of its users including those with disabilities. To ensure provision of a safe service, 24 hours’ notice is requested to arrange for a member of staff to be deployed to the requested station. This is more than compliant than the 48 hours’ notice required by Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations. It is not financially feasible or viable to have all of its DART stations manned on a full-time basis. Where difficulties arise, the Respondent will make every reasonable effort to provide assistance as evidenced by providing the Complainant with additional contact numbers and explaining the various options as was the case in relation to the first incident. This approach is in keeping with its obligations under Section 4 of the Equal Status Acts.
4. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION / EQUALITY OFFICER
4.1 The Complainant has framed her complaint as one of disability related discrimination in relation to the aforesaid incidents. Essentially, she is complaining of a failure by the Respondent to provide her with reasonable accommodation on those occasions and in general owing to the fact that wheelchair users are required to give advance notice of travel by DART. The Complainant refers to bringing this complaint on behalf of all wheelchair users but I am constrained by the various provisions of the Equal Status Acts to considering her particular complaint in its own merits. The matter for me to determine is therefore, whetherin accordance with Section 4(1), the Respondent did "all that is reasonable” to provide special facilities to the Complainant upon becoming aware of her particular difficulties subject to Section 4(2).
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 There is no issue that the Complainant has a disability within the meaning of Section 2 of the Acts and has multiple disabilities requiring use of a motorised wheelchair. It is also accepted that this complaint refers to access to a service and the Respondent is a service provider within the meaning of the Acts. 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 Before applying the aforesaid provisions to the facts presented, I must firstly resolve any conflict in evidence. The only conflict arises in relation to what precisely materialised in respect of the incident of 5th February 2014 when the Depotman returned the Complainant’s call regarding organising assistance for a DART train the following day, and specifically whether he had declined assistance for her scheduled train. In this respect, I found both the evidence of both the Complainant and the Depotman to be candid and credible. Having considered all of the evidence including the undisputed evidence that the Depotman had assisted the Complainant on various occasions previously, I am satisfied that a miscommunication arose between the Parties as to whether assistance could be made available on this particular occasion. This arose from the fact that the Depotman understandably felt that he could not reveal the reason for his expected absence from the station for a hospital appointment and the Complainant’s growing frustration in respect of the various difficulties she faced when travelling. Considering this factual situation in light of Section 4 of the Acts, I am therefore satisfied that there was no refusal or failure by the Respondent to do all that was reasonable to accommodate the Complainant with special treatment or facilities that would enable her to travel on this particular occasion. Likewise, in relation to the second incident arising on 29th May 2014, the Complainant concedes that notwithstanding the initial difficulties with the 1850 number provided and a poor response from customer service, she had been able to obtain the necessary assistance from the Respondent to travel as planned. Although the service provided was less than perfect, again I am satisfied that there was no refusal or failure by the Respondent to provide reasonable accommodation on this occasion.
4.5 In relation to the aforesaid incidents, the DART station in question was manned at all times save for the exceptional absence of the Depotman in relation to the first incident. For the sake of completeness, I will also consider the Complainant’s contention that all DART stations should be manned on a full-time basis in order to meet its obligations under these Acts and other legislative requirements. In the context of this complaint and my remit, I am constrained by Section 4(1) which provides: “…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.” Additionally, I note that “the obligation to do all that is reasonable is objectively assessed. So while a complainant may not have been satisfied with the measures taken by the service provider, the Tribunal will independently evaluate whether those measures comply with Section 4.” (Judy Walsh Equal Status Acts 2000-2011 at P.220). Having considered the challenges faced by the Respondent arising from the vintage of the DART system and huge costs of manning stations full-time along with its various initiatives to improve access to its services for persons with disabilities including reducing the notification period for wheelchair users, I am satisfied that although not perfect, the service provided generally meets the requirements under these Acts. To quote Mr Justice Hunt in relation to the obligations on a housing authority in the case of Deans -v- City Council, “All that is commanded to be done by the Equality legislation is to devise a ‘reasonable’ solution to a problem, not to achieve perfection and to give in to every demand that is made of it…”. I also refer to Wellard -v- Tesco Ireland DEC-S2009-047 and C.R. -v- A Housing AuthorityDEC-S2012-005 in this regard. That is not to say that a failure to provide reasonable accommodation cannot arise in relation to individual cases depending upon the particular circumstances. Resources permitting, there is room for the Respondent to improve its services for persons with disabilities including extending its disability awareness training to all staff and finding more reliable and efficient ways for wheelchair users to log requests for assistance.
5. DECISION
5.1 I have concluded my investigation of this complaint and based on the aforementioned, I find pursuant to Section 25(4) of the Equal Status Acts, that the Complainant has not established a prima facie case of disability discrimination and/or a failure to provide reasonable accommodation contrary to Sections 3(2)(g), 4 and 5 of the Acts by the Respondent requiring rebuttal and accordingly dismiss same.
____________________________
Aideen Collard
Adjudication / Equality Officer
12th September 2017