ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008539

Parties:

Complaint(s):

Date of Adjudication Hearing: 11/05/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Respondent did not attend the hearing. I’m satisfied proper notice of the hearing was provided to the Respondent by the WRC and where the Respondent has acknowledged the complaint and invitation to the hearing was received by its HR Department who had sent the complaint to a different department within the organisation.

Notwithstanding, following the hearing the Complainant’s evidence was provided to the Respondent and where the Respondent made two written submissions in response to the Complainant’s submissions.

Background:

The Complainant is a 16-year-old boy with a diagnosis of autism with severe impairments in social interaction and communication skills. The Complainant, through his parents, has raised a complaint under section 21 of the Equal Status Act, 2000 as amended (the Act). The Complainant was represented by his parents where they submitted that he was not reasonably accommodated by Bus Eireann with regard to the provision of school transportation services.

The Respondent has denied that it discriminated Complainant and submitted that the services were being provided by a taxi subcontracted by Bus Eireann. The Respondent therefore submitted that the correct Respondent to the complaint should be the taxi company that was providing the services.

Summary of Complainant’s Case:

The Complainant’s parents submitted that they had secured public transport from the Respondent for the Complainant to be transported from home to his special needs school each school day, and where the service had been provided to the Complainant since mid-2015. The service was subcontracted to a taxi driver, and where the Complainant would have been collected from home, and with another child in the taxi was supervised by a Special Needs Assistant.

The Complainant submitted that due to his particular dietary requirements he would have taken his breakfast in the taxi en route, and where his breakfast included a slice of toast, a banana, and fruit juice. The Complainant maintained that due to the diagnosis of autism, his routine was extremely important element of his life and where any changes in his routine could cause difficulty and regression in his development.

The Complainant’s parents advised that from 2015 the Complainant’s breakfast routine was facilitated by the taxi driver. In 2016 a new taxi driver appointed by the Respondent to provide the driving, and where the routine of the Complainant eating his breakfast while in transit to the school each morning was accommodated without a problem. The Complainant’s parents maintained that on 27th January 2017 the driver of the taxi advised the Complainant’s parents that he was getting a new taxi worth €60,000. He asked that the Complainant no longer eat toast in the cab of the new taxi. The Complainant’s father indicated that the Complainant had been allowed to eat toast with the previous and current driver and it was a part of his daily routine, and the decision not to be allowed eat the toast was a very distressing change to the Complainant’s routine. When the taxi driver returned with the Complainant that evening the driver indicated that he did not want the Complainant to eat toast in this new taxi and although the Complainant’s parents offered to buy the taxi driver a portable vacuum so that he could hoover whatever dust fell, it was submitted that the driver replied that he had a portable vacuum but did not want the clean up after the Complainant.

The Complainant’s parents submitted to the taxi driver that it was unreasonable to ask that the Complainant not eat in the new taxi given that the driver would tolerate others doing so as he had a portable vacuum for such an occasion. It was submitted that the driver then told the Complainant’s parents that it was a Bus Eireann policy not to eat in the school transport, and there were health and safety issues that related to eating on the transport.

The Complaint’s parent advised that they contacted Bus Eireann a number of days later and spoke to an Inspector who indicated that the taxi driver was being reasonable and told the Complaint’s parents that the Complainant will be given one week to stop eating the toast and that was the policy, where it was based on health and safety grounds.

The Complaint’s parents advised that they requested the Inspector to send them any information on the Respondent’s no eating policy. As they received no information they argued that a no eating policy did not exist. The Complainant’s parents also asked for a copy of the health and safety issues to be sent to the Complainant with the risk assessment indicating the risk that existed. However, despite a number of attempts the Respondent never sent the policy nor any information to the parents. The Complainant’s parents also advised that they had written two letters to the Respondent on 31st January 2017 and the 21st February 2017 seeking to have the Complainant reasonably accommodated, but that these letters were not responded to.

The Complainant’s parents advised that despite their attempts to get the information they had failed to find a no eating policy on Bus Eireann’s website, or in the terms and conditions regarding the provision of school transportation services. In the absence of such policies it was submitted that the only logical assumption was that neither the health and safety risk regarding eating in the transport existed, nor did a no-eating policy exist. Therefore’ the Complainant’s parents contested there was no reason to stop the Complainant eating his toast, and in stopping him eating the priority was the appearance of a new taxi rather than the reasonable accommodation of the Complainant. On that basis the Complainant submitted he was discriminated against on the basis of his disability.

The Complainant’s parents submitted that as a consequence of these changes the Complainant stopped eating breakfast altogether, and that the effect of the decision not to reasonably accommodate him had a significant impact on his behaviour and development. The Complainant’s parents submitted that in general they experience particular challenges regarding their son’s diet with having to provide the Complainant with a very set menu and type of food on a daily basis throughout the year, even when on holidays. They therefore submitted that the decision not to reasonably accommodate their son compounded the discrimination he experienced.

The Complainant also advised that another one of their children travels to school on a bus service provided by the Respondent. The Complainant maintained that this child would be allowed to eat on the bus when travelling to or from school, as would other children on the bus, and on occasion their child would have received confectionery from the driver of the bus. This they maintained verified that a no eating policy did not exist.

The Complainant’s parents advised that following their failed attempts to receive a response to their questions regarding the decision not to allow the Complainant to eat his breakfast in the taxi they submitted a form ES.1 on 22nd March 2017 by registered post where they requested information regarding the basis if the decision not to allow the Complainant to eat on the vehicle.   They provided evidence that the letter was presented at Bus Eireann’s head office a number of days before the two-month timescale for submitting the ES.1, but there was no answer at the address when the postman called on 24th March 2017. The Complainant’s parents maintained that the reason the letter was not accepted was due to the fact there was a strike at the Respondents’ premises over the days of the attempted delivery, and that the letter was eventually received on 29th March 2017 as there was no strike action that day. The Complainant’s parents further stated that when they realised there was a strike they emailed their request for information to bus Eireann’s online complaint/customer services to ensure they met the deadline. They were provided with a case number, but received no further correspondence from the Respondent.

Summary of Respondent’s Case:

In the Respondent’s written submission, the Respondent contended that it was not the correct Respondent. It argued that as the Complainant was carried in a taxi which was subcontracted by the Respondent to provide school transport. The Respondent therefore argued that it was the taxi company and not Bus Eireann that was the correct Respondent.

The Respondent maintained that Section 29 of the Taxi Regulation Act 2013 makes clear that a passenger must not soil the vehicle in any way. The Respondent also maintained that and the regulations state that eating or drinking whilst in the vehicle could not occur without permission of the driver of the vehicle. The Respondent contended that a clause in the contract between itself and the taxi operator requires the taxi operator to keep and maintain every taxi in a safe and roadworthy condition… complying… with all applicable laws, the Road Traffic Act, Safety Health and Welfare at Work Act, and any relevant provisions of European law. The Respondent maintained that the contract makes clear that the contractor shall… Keep every taxi cleaned, internally and externally. The Respondent submitted that the taxi industry, including the particular taxi that was in use at the time, is regulated by the National Transport Authority and where it advised that the drivers permission is needed by the passenger wishing to consume food or a non-alcoholic beverage on board the vehicle.

The Respondent also advised that the Complainant’s own medical report indicated that he regularly takes breakfast at school, including toast which is prepared for him in the school, and where it is not noted that the toast should be provided prior to the Complainant getting into the school taxi vehicle.

Whilst not conceding it was the correct Respondent, the Respondent maintained that it therefore did not discriminate the Complainant, and where the taxi driver would have had no difficulty with the Complainant consuming a banana or a fruit juice in the vehicle. On that basis the Respondent maintained that the Complainant was provided with reasonable accommodation for a person with a disability.

Findings and Conclusions:

The matter referred for adjudication is whether or not the Complainant was discriminated against pursuant to Section 3(1)(a) and 3(2)(g)- the disability ground- of the Equal Status Act, 2000 as amended (the Act).

Section 2 of the Equal Status Acts defines “service” as a service or facility of any nature which is available to the public generally or a section of the public and, without prejudice to the generality of the foregoing, includes…facilities for transport or travel”. I am satisfied that the Respondent was providing facilities for transport to the Complainant and therefore I find that the Complainant’s claim comes within the above definition.

A person making an allegation of discrimination under the Act must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the Complainant, the burden of proof then shifts to the Respondent to rebut the presumption of discrimination. I am satisfied that based on the evidence submitted that the Complainant has a diagnosis of autism and where his condition is regarded as a disability. I’m therefore satisfied that the Complainant has protection under the Act due to a disability, as defined in Section 2 of the Act.

In accordance with section 4 of the Act, discrimination on the grounds of disability includes a refusal or failure by the provider of the service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment facilities, if without such special treatment facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service. In accordance with section 4(2)a refusal or failure to provide the special treatment for facilities… 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. Section 4(4) states where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination.

Section 4(6)(b) defines the provider as…the person responsible for providing a service. Section 4 of the Act further defines “providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

I am satisfied that Bus Eireann was required to provide school transportation for the Complainant, and in so making these arrangements, in accordance with Section 4 of the Act,was required to ensure reasonable accommodation was provided to the Complainant.

In reaching my findings I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.

The evidence provided demonstrates that the Complainant’s disability requires structure and routine in his life to accommodate his disability. His care plan indicates that he finds changes to his daily routine very difficult and where this can be managed with specialised programs by preparing them gradually and skilfully. The care plan also identifies that the Complainant has a lot of difficulties with his diet and eating where he is noted as eating very little and has a very restricted diet. The care plan identifies that the Complainant’s parents and carers have developed eating programs and routines, which enables him to eat frequently, and gradually increase the range of foods which he will eat. Toast is specifically mentioned as a food of choice of the Complainant.

I am therefore satisfied that a reasonable requirement exists to accommodate the Complainant to eat a small amount of food, including toast, when travelling to school in the taxi. The evidence provided supports that the Complainant was facilitated in this routine from 2015 and up until January 2017. It appeared the changes took place due to the taxi driver that was providing the service on behalf of Bus Eireann acquiring a new taxi, and where the taxi driver at that stage decided he did not want the Complainant to eat toast any more in the taxi.

Because of the taxi driver’s decision, the Complainant’s parents contacted Bus Eireann to seek the Complainant’s reasonable accommodation to be re-instated. As the provider of the service I find Bus Eireann had an obligation to review this request and to facilitate the specific needs of the Complainant’s disability.

The evidence shows that despite written correspondence from the Complainant’s parents to Bus Eireann, it failed to reasonably engage with the parents to review the matter and to consider how the Complainant could be reasonably accommodated. In reality, the granting of permission for the Complainant to eat toast in the taxi is not an accommodation that would give rise to a cost, other than a nominal cost, if at all. There was no evidence provided that when the Complainant was being reasonably accommodated previously that any soiling of the taxi occurred, our if soiling had occurred in the past that it presented an unreasonable cost to the taxi driver, or the Respondent. It is also noted that the taxi regulation states that the driver’s permission is needed by any passenger wishing to consume food or non-alcoholic beverage on-board the vehicle. As this was a specific need for the Complainant it would have reasonable for Bus Eireann, who was responsible for providing service, to either make these arrangements with the driver, or to source another driver that would not object to the Complainant consuming toast when travelling to school in the morning.

Similarly, it is noted that whilst the Respondent was relying on health and safety risks, it failed to demonstrate where any risk assessment had been made of the Complaint’s eating requirements due to his disability. The Respondent failed to demonstrate it consulted with the Complaint or his representatives in deciding not to accommodate his eating needs, or to consult on the consequences to the Complainant for any change in the accommodation that had been provided to him over the previous 18 months. On this basis I find that the Respondent is in breach of its obligations under Section 4 of the Act and it has failed to reasonably accommodate the Complainant.

It is further noted that the Respondent rejected the complaint’s ES.1 form on the basis it had arrived two days late, and therefore decided the complaint was outside the two-month’s timeframe required for submitting the form. The evidence provided indicates that the Complainant’s parents had attempted seek a resolution of the matter during January and February 2017, as is demonstrated in the letters to the Respondent. As the concerns were not being met they posted the ES.1 form by registered post on 23rd March 2017 with every reasonable expectation that they had posted the form in time. Attempts to the deliver the letter by the postal service failed because on 24th March 2017 there was no answer at the address due to a strike at the Respondent’s premises, and where due to this the form was only received on 29th March 2017. Notwithstanding, the Complainant had also submitted the information request to the Respondent’s website within the time frame and where a customer case number regarding the complaint was received. However, the Complainant parents received no further correspondence from the Respondent.

In light of the circumstances I do not find that the Respondent dealt with the matter reasonably and I conclude the Respondent failed to take account of circumstances of the strike at its premises which were outside of the Complainant’s control. The Complainant made every effort to submit the forms within the timescale prescribed, and had the strike not occurred the Respondent would have received the form on time. Notwithstanding, in accordance with Section 21(2A) of the Act, the date of notification for the form ES.1 is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent. The evidence provided clearly shows that the ES.1 form was sent on 23rd March 2017, which was within time, and was received by the Respondent, but was rejected as being out of time and therefore not responded to.

Either way, in accordance with Section 22(3)(i) of the Act, I may for reasonable cause, direct that the complaintshall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction. There is therefore reasonable cause to extend the period to four months.

Taking all of the above into account I find the Respondent, was in breach of Section 4 of the Act in that by refusing to consider arrangements to allow the Complainant to eat in the taxi it provided for his school transportation, the Respondent failed to reasonably accommodate the Complaint’s disability; and it also failed to reasonably respond to the Complainant’s notification that was issued under S21 of the Act.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 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 26 of the Act allows me to consider the Respondent’s non-reply to the ES.1, and draw such inferences, if any, as seem appropriate from the failure to reply.

As I have found in favour of the Complainant, in that I find he was discriminated on the grounds of his disability by not being reasonably accommodated when being provided with school transportation services; and as I have found that the Respondent was unreasonable in its omission to respond to the Complainant’s request for information on ES.1 , in accordance with the provisions as set out in Section 27 of the Act I order the Respondent to pay compensation of €5,000 to the Complainant for the effects of the discrimination and failure to respond to the ES.1.

I further order that the Respondent is to consult with the Complainant without delay in order to reasonably accommodate the needs of the Complainant with regards to the transport services provided by the Respondent.

Dated:   8th August 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: Equal Status, Provision of Transport Services, Disability, Reasonable Accommodation, Failure to Provide Information.