EQUAL STATUS ACTS
DEC-S2018-007
Robert Sinnott
v
Iarnrod Eireann
(represented by CIE Group of companies Solicitor.)
File reference: ES/2014/0190
Date of issue: 29th March 2018
Keywords:Equal Status Acts, Disability, Failure to provide reasonable accommodation.
Dispute
1.1 The case concerns a claim by Mr Robert Sinnot, (hereinafter referred to as ‘the complainant’) that he was subjected to discrimination by Iarnrod Eireann (hereinafter referred to as ‘the Respondent’) on disability ground contrary to section 3 of the of the equal status Acts 2000 to 2011 (hereinafter referred to as ‘the Acts’) when it failed to provide him with reasonable accommodation, pursuant to Section 4 of the Acts. The complainant submitted that the respondent in providing services had failed to meet its obligations under the Acts.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 29 September 2014. On 26th July 2017, in accordance with her powers under S. 75 of the Employment Equality Acts, and under the Equal Status Acts, the Director General delegated the case to me, Peter Healy, an Adjudication Officer/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Acts. On this date, my investigation commenced. Submissions were received from both parties and a hearing was held on the 8th June 2017, as required by Section 25(1) of the Acts. On the day of the hearing the complainant withdrew elements of his complaint relating to hazardous phone installations and harassment from other passengers.
1.3 Following this hearing, further submissions were requested from the respondent. These submissions did not arrive on the 13th June 2017 but were not in a format accessible by the complainant. The respondent was requested to submit documentation in a format accessible to the complainant but it was not forthcoming. After repeated reminders by this Adjudicator the respondent sent a letter to the WRC on the 13th November stating that they had contacted the complainant directly and Mr Sinnott had agreed to meet with a representative to go through required material. Mr Sinnott was contacted by the WRC by phone and he stated that he had not been contacted by the respondent and that he had not consented to meet.
1.4 On December 14th, the WRC returned the additional submissions to the Respondent as they were not accessible by the complainant. Due to the extensive delay, both parties were informed by phone that a decision would be issued based on evidenced presented up to and including the day of the hearing.
1.5 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.
Summary of the complainant’s submission
2.1
1. Platform Announcements
The complainant submits that audio announcements need to be used for every train so that he and other people with a vision impairment are not at a disadvantage. When they do occur, they are automatically, computer-generated announcements, which are relatively inexpensive. Because of this ongoing problem of lack of announcements on Connolly platforms, the complainant submits that he inadvertently ends up on the Maynooth train instead of the Drogheda train about two or three times a year. the last time was July, and he had to pay for a taxi to Donabate at that time.
2. On-board Announcements
The on-board announcements are often incorrect regarding arrival at stations and this has resulted is serious problems for the complainant as a person with a visual disability. On numerous occasions the complainant has missed his stop and been left stranded at other destinations.
3. Safety: Tactile Markings
The complainant submits that the tactile markings on platforms are not suitable.
4. Safety: provision of general safety information.
The complainant submits that health and safety information on trains is not accessible to those with visual impairment.
5. Inaccessible Timetable Information and Complaints Procedure
The complainant submits that at the relevant time tables were not accessible to people with visual impairment. Specifically, the on-line system was not accessible. Elements of the respondent’s complaints procedure require that the complaint provide paper documentation to acquire refunds.
6. Rosslare Europort Inaccessible after 2008 Transformation
The complainant submits that for a period this station was inaccessible as a maze of barriers had been constructed.
7. Access to and From Stations
The complainant submits that on accession he has been unable to exit stations as the barriers have been closed.
8. Destination Information in large Stations.
The complainant submits that the on-board system should tell the passengers which (number) platforms they are arriving at.
9. Revenue Protection Officers and Personal Security of the Blind.
The complainant submits that representatives for the respondent wishing to check the validity of passenger’s tickets do not deal with him in an acceptable manner and that he has been pushed on occasion.
Summary of the respondent’s submission
3.1 The respondent submits that it is their policy to welcome any customer with a disability to use their services and whenever possible to do the utmost to facilitate the varied needs of all their customers. The respondent submits that it carries ongoing disability reviews and fully engages with disabled customers. In relation to the specific items raised the respondent submits the following.
1. Platform Announcements
The respondent submits that a full disability audit had been carried out and that outside of Mr Sinnott no other issues had been brought to the attention of the respondent.
2. On-board Announcements
At the hearing the respondent submitted the on-board announcement system is a stand-alone GPS operated system.
3. Safety: Tactile Markings
The respondent submits that the tactile marking complies with international standards.
4. Safety: provision of general safety information.
The respondent submits that Health and safety information is available in braille.
5. Inaccessible Timetable Information and Complaints Procedure
The respondent submits that since 2013 timetables have been fully accessible and that various new systems have been introduced since the time of the complaint. In relation to the complaints procedure, the respondent submits that vouched receipts are required.
6. Rosslare Europort Inaccessible after 2008 Transformation
The respondent submits that the station was built to the required standards and meets disability requirements.
7. Access to and From Stations
The respondent submits that a barrier free system has been implemented to allow customers to exit stations.
8. Destination Information in large Stations.
The respondent submits that such detail is beyond that capability of the automated system.
9. Revenue Protection Officers and Personal Security of the Blind.
The respondent submits that adequate training is given to personnel to deal with the requirements of those with visual impairment.
Conclusions of the Equality Officer
4.1 Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where: “On any of the grounds specified... (in this case the age and
disability grounds) .... A person is treated less favourably than another person is, has been or would be treated.”
Section 3(2) provides that: as between any two persons, the discriminatory grounds are,
(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” )
In the instant case the complainant has a disability under the Acts and this is not contested by the respondent.
4.2 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 can rely in asserting that prohibited conduct has occurred. Therefor 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.
4.3 In regards to reasonable accommodation, Section 4 of the Acts provides
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.
In the instant case, the complainant contends that the respondent failed to put in place a range of measures that would allow him to access their services. I must consider if the absence of these measures made it impossible or unduly difficult for the complainant to access the respondent’s services.
4.4 The complainant has chosen to use this adjudication process to raise numerous individual complaints regarding the provision of services. Extensive detail was provided in advance of the hearing by the complaint regarding the impact that each of these instances have had on him personally. Having heard a full account from both parties I find the following in relation to the individual matters raised.
1. Platform Announcements
Platform announcements are linked directly to real time position on tracks. Human oversight is present and when system breaks down corrections are made. There is little more that the respondent can do other than manage human error and their behaviour in this regard does not amount to discrimination.
2. On-board Announcements
Are controlled by a GPS system. Its admitted that from time to time this GPS can make errors resulting in the situation that the complainant has experienced resulting in great distress for the complainant. Failure of this system has a far greater impact on visually impaired passengers. The respondent needs to review the system to improve its accuracy
While the system has failed the complainant on occasion, its existence is clearly of most benefit to those with visual impairment. As the complainant points out those without visual impairment can access services easily without the system.
However, the respondent had in place a system which it knew was faulty resulting in service delivery problems for the complainant and took no actions to address the faults. Such action is indirectly discriminatory under the acts and compensation to the complainant for the ill effects he suffered at that time are warranted.
3. Safety: Tactile Markings
The respondent submits that the tactile markings used were chosen as they correspond to international standards. It is the complaints position that the respondent should not take the international standards at face value but should conduct its own testing. I am satisfied that the respondent has taken a reasonable approach in implementing reasonable accommodation in the choice of markings.
4. Safety: provision of general safety information.
The complainant dropped this element of his complaint during the hearing.
5. Inaccessible Timetable Information and complaints procedure.
It was the complainant’s submission that he was fully satisfied with the Respondents online time table service from 2014 to 2017. At the hearing of this complainant the respondent noted the complainants current dissatisfaction and agreed to review. It is the responds position that at the time relevant to this complaint that the respondent was in a consultation process to improve its service delivery. I find that the delay in the delivery of a system that meets the complainant’s requirements does not constitute discrimination under the Acts.
In regards to the complaints procedures,I accept the respondent’s submission that they cannot operate an unvouched expenses system. In the instant example the receipts were provided by a third party and outside the control of the respondent.
6. Rosslare Europort Inaccessible after 2008 Transformation
I accept the complainants evidence that he was physically unable to enter the premises at the relevant time and that this was of significant distress to him. Due to the circumstances detailed at 1.4 above the respondent has not made a detailed response to the accusation. The respondent should have made some effort to allow the complainant to access services in such circumstances. Their failure to do so constitutes indirect discrimination regard those such as the complainant who are visually impaired.
7. Access to and From Stations
The complainant objects to the respondent implementing a policy where all stations have barriers installed and the withdrawal of free access. It is the respondent’s policy that unmanned stations will always have free access point. The incidents cited by the complainant are therefore the result of human error and do not constitute discrimination.
8. Destination Information in large Stations.
The complainant submits that the on-board system should tell the passengers which platforms them are arriving at. Given the issues highlighted at point 2. Above I accept the respondent’s submission that such systems will not be capable of such precision for some time and the absence of such does not make it impossible for the complainant to access services.
9. Revenue Protection Officers and Personal Security of the Blind.
It is the complaints submission that the respondent should not ask to verify the tickets of passengers who are obviously visually impaired. I do not believe that this is a workable solution as not all visually impaired individuals are readily identifiable to the public. I accept the respondent’s assertion that proper training is in place.
4.5 The respondent provides services to a large number of people including those with a variety of disabilities. I accept the respondent’s assertion that at the time relevant to this complaint have carried out consultation processes to improve its service delivery for those with disabilities. I find that the behaviour of the respondent does not amount to discrimination in the majority the points raised above with the exception of points 2. and 6.
4.6 The respondent’s treatment of the complaint amounts to discrimination in regards to points: 2. On-board Announcements and 6. Rosslare Europort Inaccessible after 2008 Transformation. I accept the complainants account that he has suffered greatly due to this treatment.
Decision
5.1 In accordance with Section 25(4) of these Acts, I conclude this investigation and issue the following decision:
- that the complainant has established a prima facie case of indirect discrimination on the ground of disability and this has not been rebutted by the respondent.
5.2 Therefore, as per Section 27(1) (a) I order the respondent to pay to the complainant €4,000 in compensation for the effects of the prohibited conduct.
5.3 I direct that the Respondent review the on-board announcement system to ensure persons with visual impairments are not impacted negatively.
______________
Peter Healy
Adjudication Officer
29th March 2018.