Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00015793-001

13/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00017508-001

15/02/2018

Mr Nicholson uses the Bus Éireann service from his home in Strandhill, County Sligo. He is the holder of a disability travel pass and, at the hearing, he explained that he suffers from a traumatised nervous system, a hernia and Tourette’s Syndrome, a neurological condition characterised by involuntary random sounds and movements, known as tics. At the hearing, there was little manifestation of Tourette’s Syndrome and Mr Nicholson’s complaint relates mainly to what he described as his “shattered nervous system” and his general poor health.  

Mr Nicholson’s complaint is that Bus Éireann discriminated against him, harassed him and victimised him when certain drivers on the route from Strandhill refused his request to lower the volume of the radio. He claims that when he asked for the volume to be turned down, the drivers were abusive and on one occasion, a driver ordered him to get off the bus.

On July 6th 2017, Mr Nicholson submitted a form ES 1 to Bus Éireann. His proof of postage indicated that the form was sent to Bus Áras, Store Street, Dublin 1.   He didn’t receive a response and on August 29th, he submitted this complaint to the WRC.   This is in line with section 21(4) of the Act, which provides as follows:

“The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

On August 31st 2017, notification of Mr Nicholson’s complaint to the WRC was sent to Bus Éireann, addressed to the Company Secretary at Store Street, Dublin 1.     On October 9th 2017, the Chief Human Resources Officer at Bus Éireann wrote to acknowledge the complaint and stated that they did not receive the ES 1 form. This letter also indicated that Bus Éireann would be willing to attend mediation to resolve Mr Nicholson’s complaint.

On November 13th 2017, Mr Nicholson submitted another complaint and included a copy of an ES 1 form which he sent to Bus Éireann on October 25th 2017, less than one month previously. He sent this ES 1 form to the Complaints Department at Broadstone, Dublin 7. On December 19th, the Accessibility and Information at Bus Éireann wrote to the WRC acknowledging receipt of the first complaint, providing some details of their understanding of the complaint and again indicating that they were open to mediation.   Nonetheless, a hearing was scheduled for March 2nd 2018 to consider the complaints of August 29th and November 13th 2017. On February 15th however, Mr Nicholson submitted a third complaint, again enclosing an ES 1 form which he sent to Bus Éireann two days previously. The proof of postage gives no address, although on the form itself, Mr Nicholson indicated that the address to which he intended sending the form was Bus Éireann’s offices at Broadstone, Dublin 7. The hearing scheduled for March 2nd 2018 was postponed so that the three complaints could be considered together. A hearing was then arranged for April 17th 2018, for consideration of each complaint.

This decision is a response to Mr Nicholson’s three complaints: CA-00013370-001 (under ADJ-00010265), CA-00015793-001 and CA-00017508-001 (under ADJ-00011908). For completeness, a duplicate decision has been issued under ADJ-00010265.  

CA-00013370-001: Chronology of the Complaint

September 2016

Mr Nicholson said that around September 2016, he first asked the bus driver on the Strandhill – Sligo route to lower the volume of the radio, which he did instantly.

December 2016

In early December that year, he repeated his request to the driver to lower the volume and Mr Nicholson said that the driver stopped the bus and walked down the aisle “in a menacing manner.” Mr Nicholson said he felt threatened by this response.   When he noticed that the volume was not noticeably lower, Mr Nicholson said that he explained to the driver that he has a shattered nervous system and that he asked him “on compassionate grounds” to turn down the volume.   Mr Nicholson said that the driver responded in a nasty tone, “right, I’ll do it this time.”

Mr Nicholson explained that this driver was driving a big bus, as opposed to smaller buses on the same route and that he “blasts” the volume on the radio. He said that other drivers on the big bus maintain the radio volume in the driver’s area. Mr Nicholson said that he wears ear-plugs to block out the sound of the radio and that he will only ask for the volume to be lowered if he can hear the radio with his ear-plugs in.

January 2nd 2017

Shortly into his journey on January 2nd, Mr Nicholson said that the volume on the bus was very loud. He said that he approached the driver and asked him to lower the volume, to which the driver replied, “you again?” in a condescending manner. When Mr Nicholson persisted with his request, he was told to sit down.   Mr Nicholson said that the driver then stopped the bus and opened the doors and he sensed by this action that he was to disembark. He said that the driver did not ask him to leave the bus, but that by his “intimidating power-play,” he interpreted that the driver wanted him off the bus. Mr Nicholson said that he felt he was “bullied off the bus” and that he had to walk six kilometres home carrying his shopping.

At the hearing, Mr Nicholson said that he was in Sligo one day after this incident and the drivers from the bus depot were all staring at him. He said that the driver he had the arguments with was laughing at him.

Early February 2017

On a journey from Sligo to Eniskillen, Mr Nicholson met the same driver again. This time, it appears there was no issue with the radio but Mr Nicholson confronted the driver about the incident on January 2nd, when he felt he had to get off the bus. He told the driver that his behaviour was intimidating, bullying and abusive. He said that he told him that he had severe health issues and showed him his disability bus pass, saying, “I have this for a reason.” Mr Nicholson said that during this altercation, he didn’t shout or use expletives, but he was clearly angry. A few days later, on a journey from Sligo to Strandhill, Mr Nicholson met the same driver again and there were no problems.

Mid-March 2017

Mr Nicholson boarded a bus in Strandhill and he said that the radio was on very loud. He asked the driver to lower the volume. He said that the radio continued “blasting through the whole bus” and he left his seat and approached the driver and asked him to lower the volume. He said that he got the impression that the driver was playing with the volume button and he asked him to lower the volume three or four times, leaving his seat to do so. All this time, the bus was stationary as it had not left the stop at Strandhill. Mr Nicholson said that he asked the driver, “why do you take offence, I’m only asking you to lower the volume?” He said that the driver responded, “you may need to find some other form of transport” but he lowered the volume saying, “right, I’ll do it this time.”   Mr Nicholson said that he felt humiliated, manipulated and abused by this behaviour.

On a later occasion in March, when he encountered the same driver again, Mr Nicholson said that he “felt compelled to express to him that his behaviour was bullying, intimidating and abusive.” He said that the driver responded saying, “right, I’m barring you from the bus, you’re barred from the bus!”

The next day, Mr Nicholson challenged the driver again, and showed him a book he was reading about bullying in the workplace.

May 4th 2017

As he boarded the bus from Strandhill, Mr Nicholson said the radio was “blasting” and he asked the driver to lower it down.   When the driver responded saying, “the volume is fine,” Mr Nicholson said, “well, it’s not fine for me.” He again produced his book about workplace bullying and he said the discussion about the volume of the radio went back and forth between him and the driver. When he said to the driver, “sir, the only thing I’ve ever asked of you is to lower the volume,” the driver said, “please leave the bus.”

Mr Nicholson said that he feels that this driver doesn’t want him on his buses and that he seems “to take satisfaction from all this.”   He said that he wants to “get from A to B in peace and if the volume is being blasted through the bus, that’s simply not possible.”   Explaining the effect this has on his health, Mr Nicholson said that as he has a severely traumatised nervous system, travelling on the bus with the radio on loud makes him feel unwell and quite dishevelled. He said that he feels that his experiences with the drivers is affecting his healing process.

CA-00015793-001:Chronology of the Complaint

August 25th 2017

Mr Nicholson was travelling from Manorhamilton to Sligo and when he asked the driver to lower the volume of the radio, he was abruptly told to sit down. On arrival in Sligo, he confronted the driver about the radio and the driver said that he had lowered the volume. Mr Nicholson said that it was not lowered enough for him to notice. When he showed the driver his ear-plugs and explained that he was wearing them to accommodate the driver, he said that the driver responded saying, “you shouldn’t be travelling the buses” and “every time you’re on the bus, you’re always hassling me.”

September 1st 2017

When he flagged down the bus in Strandhill, the driver went past without stopping. The bus stopped further up the road for another passenger and Mr Nicholson attempted to board the bus, but the driver closed the door and indicated to him with a “no” that he wasn’t getting on.

CA-00017508-001:Chronology of the Complaint

December 16th 2017

Mr Nicholson boarded the bus in John Street, Sligo and found that the volume of the radio was at an acceptable level, although he had his ear-plugs in. He said that the drivers changed at the bus station and the replacement driver raised the volume to a level that he could not tolerate.   When the bus stopped to let a passenger disembark, Mr Nicholson approached the driver and asked him to lower the volume. He said that the driver looked at him “with disgust and astonishment.” After this request, Mr Nicholson didn’t notice any change in the volume of the radio and when another passenger was getting off, he approached the driver again, saying, “please sir, could you lower the volume?” In response, Mr Nicholson said that the driver lowered his head to the steering wheel and put his hands over his head and shrieked, “will you leave me alone!” Mr Nicholson, “in an assertive, clear monotone,” said, “I’m reporting you,” to which the driver responded, “you’re reporting everyone!”

December 19th 2017

Mr Nicholson was waiting to board the bus in Strandhill and the driver disembarked and closed the door. Face to face with the driver, Mr Nicholson said that he was very unnerved. He said that the driver “went into a diatribe,” and said that he was “willing to go to court over this.” The driver told Mr Nicholson that he had reported him and asked him why he was the only driver that he asked to lower the volume of the radio. Mr Nicolson reassured the driver that he was not the only one, as he made the same request of about 15 other drivers and received responses ranging from “yes, sure,” to a disgruntled gesture or the volume being lowered and then raised again. Referring to their altercation three days previously, the driver said that Mr Nicholson had threatened him, but Mr Nicholson denies any threatening behaviour and claimed that the driver had engaged in a vitriolic monologue.  

Conclusion

At the hearing, Mr Nicholson said that all he did was try to stand up for himself, but that he has been “treated like garbage.” He said that he believes that the core of this problem is “territorial” where the drivers “don’t want to be disturbed by someone like me with health issues concerning very loud volume while they are listening to their favourite radio show or whatever it might be.”

Mr Nicholson said that he feels he is the subject of some “locker room talk” among the drivers in Sligo, but he wants to say that most of them are decent. He said that he wants to travel on the buses freely and to be treated with respect.   He has not travelled on Bus Éireann buses since December 2017 and he wants to travel on the buses and not to have to ask the drivers to lower the volume of the radio.

In conclusion, Mr Nicholson referred to the Córas Iompair Éireann Bye-laws (Confirmation) )Order (SI 251/2014) which, at section 59(1), provides that:

“A passenger shall not sing, perform on a musical or other instrument or use an audible radio, television, record player, tape recorder or portable apparatus on a vehicle.”

He said that this bye-law effectively prohibits the paying of loud music on buses and he believes that if Bus Éireann’s drivers abided by its own laws, these incidents may never have occurred.

While no one from Bus Éireann attended the hearing into Mr Nicholson’s complaint, on December 19th, the Accessibility and Information Officer wrote to the WRC.   Referring to the complaint, she stated:

“It appears to relate to a number of separate but related incidents between September of 2016 and September of 2017, involving one of our drivers and Mr Nicholson. The driver is based in our Sligo depot.”

“We have interviewed the driver concerned, who advises that he experienced a number of difficulties with Mr Nicholson’s behaviour when using the services and felt he had to take certain actions in the interests of a safe operation of the buses he was driving. We have also received a report from another driver in relation to this matter. Please note that we did make efforts to contact Mr Nicholson to arrange for a meeting to try to resolve issues.”

“Bus Éireann is prepared to attend mediation in relation to this matter.”

The Legislative Framework

The preamble to the Equal Status Act 2000 states that its purpose is,

“…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.”

In keeping with this legislation, the public has a right to access the services of Bus Éireann, without being harassed or discriminated against on any grounds.   Mr Nicholson’s complaint is about discrimination on the ground of disability and section 4 of the Act addresses this:

“(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.

Sub-sections (2) to (5) of section 4 are not relevant to this complaint.   “Provider of a service” is set out at sub-section (6)(b):

“(6) In this section—

“provider of a service” means—

(b) the person responsible for providing a service in respect of which section 5 (1) applies…  

“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.”

Section 5(1) of the Equal Status Act 2000 – 2012 provides that:

“A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.”

In the complaint under consideration here, our focus is on the provision of a safe and comfortable bus service. Mr Nicholson’s argument is that his journeys are not comfortable that this constitutes discrimination on the ground of disability.

The Burden of Proof

Section 38A of the Equality Act 2004, sets out the burden of proof in discrimination complaints:

“(1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on Mr Nicholson to show that, based on the primary facts, he has been discriminated against by Bus Éireann because of his disability.

“Disability” is defined in section 2 of the Act as:

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)   the presence in the body of organisms causing, or likely to cause chronic illness or disease,

(c)   the malfunction, malformation or disfigurement of a part of a person’s body,

(d)   a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perceptions of reality, emotions or judgements or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.”

The issue for consideration is whether the Mr Nicholson’s illnesses are consistent with the definition of a disability set out at sub-section (e) above.

Mr Nicholson’s Health Condition

In his evidence, Mr Nicholson said that he has very poor health, sensitivity issues, a hernia, a shattered nervous system and Tourette’s syndrome. During his altercations with the drivers in the Sligo depot, it appears that he informed them that he has a compromised nervous system and his complaint about the loudness of the radio on the bus is related to its effect on his nervous system.

Mr Nicholson produced no medical evidence at the hearing, or in his ES 1 forms, although he is the holder of a disability travel pass. Having carried out some research into this matter, I understand that a disability travel pass may be issued to a person who is in receipt of a disability allowance or a disablement pension from the Department of Social Protection.   I understand that recipients of these benefits may not necessarily have a disability but, may be suffering from an illness or injury likely to last for a considerable length of time.  

Having considered this matter, it is my view that a compromised nervous system is a common complaint among people faced with daily or occasional difficulties in life.   Among numerous other stressors, normal experiences such as looking after children, doing exams, dealing with grief, being unemployed, all present challenges to our “nerves.” It strikes me that suffering from nervous tension is common to most of us at some stage and that the condition generally subsides when the stressor is removed. In his evidence, Mr Nicholson said that his shattered nerves result from being bullied at school.

In the Labour Court case of A Government Department v A Worker, EDA 094, addressing the issue of the definition of disability, the Chairman, Mr Duffy, stated:

“The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.”

It is my view that common sense must prevail with respect to Mr Nicholson’s claim that he suffers from a disability as defined in the Act. He is not claiming that he suffers from depression or from a psychiatric illness, but that he has shattered nerves. He shares this condition with his fellow human beings to a greater or lesser degree and on a temporary or on-going basis. Mr Duffy concluded his point on this issue as follows:

“It would appear to the Court that if the statute were to be constructed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

Taking the authority of the Labour Court on this matter and, In the absence of medical evidence, I find that Mr Nicholson’s condition cannot be construed as a disability.   For this reason, his complaint of discrimination on the ground of disability is not upheld.

Conclusion

As a member of the public, Mr Nicholson is entitled to travel on the bus in comfort, and without the annoyance of a loud radio. Bus Éireann’s customer charter opens with this statement:

“We are dedicated to providing our customers with a comprehensive, quality public transport service through our integrated network.

“In Bus Éireann, we strongly believe in providing a friendly, effective, value-for-money and safe service to all our customers and treat everyone with due care and consideration. We recognise the diversity of our customers and the importance of meeting their varied needs.”

It is my view that the complaints described by Mr Nicholson relate to what any reasonable person is entitled to expect from Bus Éireann; simply to travel in comfort.   On his evidence and, in the absence of evidence from representatives of Bus Éireann, he has not been treated with the “due care and consideration” set out in the customer charter. It is my view that Mr Nicholson’s complaints are more appropriate to Bus Éireann’s customer care department. The company’s website provides clear and simple instructions for making complaints by telephone and e-mail. It is my view that, if Mr Nicholson had submitted his complaint directly to Bus Éireann, they would have been resolved efficiently without the need for this enquiry.

While no official from Bus Éireann attended the hearing into this matter, it appears from the correspondence that they were open to resolving Mr Nicholson’s complaint. I expect that, on the issuing of this decision, a representative from Bus Éireann will contact Mr Nicholson to consider his complaints and to resolve his grievances with the drivers in Sligo so that he can return to using the bus in comfort.

I have concluded that Mr Nicholson does not have a disability as defined by section 2 of the Equal Status Act, and for this reason, I decide that his complaint is not upheld.

Discrimination, disability, equal status