Complainant

Respondent

Anonymised Parties

An Airline Passenger

An Airline

Representatives

none 

Alastair Purdy and Company, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035350-001

19/03/2020

The complainant suffers from muscular dystrophy and uses a walking aid. She travelled from Dublin to a city in England on Friday, December 13th 2019 and returned on Monday, December 16th. When she booked her flights, through “Airline B,” she indicated in her online booking that she required wheelchair assistance because she has difficulty walking long distances and she cannot manage the aircraft steps. A wheelchair lift was provided for her outbound flight; however, no lift was provided for her return flight at 19.10 on Monday, December 16th.   As a result, the complainant said that she “had no choice but to climb the steep steps on to the plane.” She was assisted by a member of the ground crew, a minibus driver, who pushed her up the steps and helped her to lift her legs, while she supported herself by clinging on to the rails.

The complainant’s case is that she was discriminated against by the respondent, Airline A, and by their partner, Airline B, because of their failure to provide her with the service she requested so that she could board her flight comfortably and free of humiliation.

This complaint is against Airline A. A separate complaint was submitted against Airline B, reference ADJ-00027603.

Incident at the Airport

At the hearing, the complainant provided a copy of confirmation of her online booking with Airline B dated December 5th 2019. Airline A is identified on the booking confirmation as the airline operating the flights and the booking confirmation states: “Special request: 1 wheelchair for steps.” When she arrived at the airport in advance of her 19.10 return flight to Dublin on December 16th 2019, the complainant went to the check in desk to get her boarding pass. She informed the check-in crew that, because of her disability, she could not climb the aircraft steps. A crew member confirmed that she was aware of the wheelchair request but she said that a lift, known as an “ambi-lift” wasn’t available and that “there are only two or three steps and you should be able to manage.”

Contrary to the statement of the crew member that an ambi-lift wasn’t available, an employee of the special assistance service informed the complainant that a lift was available and she walked her to the check-in security area, where she got into a wheelchair. The complainant waited there for a member of the airport staff to push her to the waiting area for people with mobility issues.

As she waited in the wheelchair, the complainant said that another employee approached her and showed her a picture of the steps and asked her if she could climb them to board the plane. The complainant again explained that she couldn’t manage the steps and that she needed a lift. The employee replied that a lift wasn’t available. At this point, the complainant said that she was growing increasingly anxious and apprehensive at the thought of having to try to climb the five or six steps onto the aircraft without assistance.

A few minutes after this conversation, a member of the airport’s staff arrived and directed the complainant to a minibus to drive her to the plane. The complainant got out of the wheelchair and when the driver noticed that she had a difficulty stepping into the minibus, he lowered a ramp to assist her. The complainant said that she pleaded with the minibus driver to arrange a lift for her to embark the plane and he contacted a colleague on his radio. She said that she heard a voice responding, “We’re too busy, we can’t do it.”

The complainant said that she had no alternative but to climb the steps. She did so with huge difficulty while passengers and crew members looked on. She said that the minibus driver pushed her up the steps, pushing her buttocks and her back and assisting her by lifting her legs up the steps while she held onto the railings. She said,

“To say I was deeply humiliated by this ordeal would be a gross understatement. Two members of Airline B cabin crew witnessed all this from the top of the steps.   Despite not coming to my aid, they expressed their shock at what they had witnessed. I wrote a complaint …while on board.”

A copy of this email was included in the complainant’s documents that she submitted in evidence at the hearing form. In the final section she described how she felt when she arrived in her seat:

“My legs were like weak and throbbing when I got up the steps and my back ached also. I’m sitting on the plane writing this at the moment and I honestly am so upset.   The two air hostesses on the plane were very kind and compassionate. They promised me a lift in Dublin which was provided.”

The Rights of People with Disabilities when Travelling by Air

The complainant referred to paragraph (2) of the preamble to Regulation (EC) No 1107 of 2006 of the European Parliament and of the European Council, concerning the rights of disabled persons and persons with reduced mobility when travelling by air (“Regulation 1107/2006”). This provides that disabled persons should be not be refused transport on the grounds of their disability, except for safety or legal reasons and sets out what service providers must do before accepting bookings:

“Before accepting reservations from disabled persons or persons with reduced mobility, air carriers, their agents and tour operators should make all reasonable efforts to verify whether there is a reason which is justified on the grounds of safety and which would prevent such persons being accommodated on the flights concerned.”

Article 4 of Regulation 1107/2006 is titled, “Derogations, special conditions and information.” Paragraph 1 provides that an air carrier may refuse to accept a reservation from a disabled person or a person with reduced mobility,

“(a) in order to meet applicable safety requirements established by international, Community or national law or in order to meet safety requirements established by the authority that issued the air operator’s certificate to the air carrier concerned.”

The complainant also referred to the requirement for training for airport and airline employees so that providers can fulfil their duty to provide assistance to people with disabilities and those with reduced mobility. She said that when she communicated with the service provider at the airport, it was apparent that she had a disability, as she was using a walking aid, but instead of “making a decent / fair effort to assist me” the person she dealt with gave her vague directions to the special assistance area.

Article 11 of Regulation 1107/2006 addresses the requirement for training and provides that,

“Air carriers and airport managing bodies shall:

(a) ensure that all their personnel, including those employed by any sub-contractor, providing direct assistance to any disabled person and persons with reduced mobility have knowledge of how to meet the needs of persons having various disabilities or mobility impairments;

(b) provide disability-equality and disability-awareness training to all their personnel working at the airport who deal directly with the travelling public;

(c) ensure that, upon recruitment, all new employees attend disability-related training and that personnel receive refresher training courses when appropriate.”

The complainant said that the manner in which she was treated at the airport in England makes her doubt that any regard was given to this provision for staff training and disability awareness.

Communication Following the Incident

On December 17th 2019, the day after she returned from England, the complainant received a response from Airline B’s guest relations office to the email she sent while she was on the flight. The guest service team member wrote:

“Dear …

We truly appreciate the time you spent to let us know your experience.

I cannot explain or excuse the service failures your correspondence describes and I would like to apologise to you, sincerely, for the disappointment.

We have always been conscious of the importance of providing a reliable service and we expect the highest level of care from our Handling Agents. I am really sorry of not meeting your expectation by not being able to use the service that you specifically requested for (Sic).

Your feedback on how difficult the situation you endured during your travel with us is duly noted and I can assure you that we are always working to minimise the inconvenience.

We thank you for being our valued guest and for appreciating one of our airport crew who helped you a lot. Please despite the difficulties encountered on this occasion, we hope that you will still afford us the opportunity to welcome you on board our services for a more enjoyable experience in the future.”

On December 27th, the complainant received a reply from the customer relations office at the airport, informing her that her complaint had been raised with the service delivery manager of the company contracted to provide assistance to people with disabilities and reduced mobility at the airport. For the remainder of this document, I will refer to this company as “the wheelchair lift provider.”

On January 10th 2020, the complainant was informed that the customer services manager, “CSM,” from the wheelchair lift provider apologised and provided the background to what occurred. The CSM said that two options for assisting people with disabilities are used in the airport, an “ambi-lift” and an “avi-ramp.” She said that the preferred option is an avi-ramp, which is a mechanism that conveys a wheelchair up the steps to the aircraft.   On December 16th 2019, the avi-ramp was damaged and not available for use. The CSM said that the movement controller was advised that the complainant was capable of walking up the steps. When the time came for boarding and the complainant said that she could not go up the steps unaided, the ambi-lifts were assigned to other jobs and the movement controller advised the minibus driver to proceed to the aircraft steps to wait for one. The CSM said that the minibus driver then helped the complainant up the steps.

THE CSM said that, from speaking with both staff, she felt that there was a “communication error whereby the movement controller was unaware of the level of assistance and that the passenger had been unable to ascend the minibus steps. If this information had been received, the decision could have been made earlier to use an ambi-lift instead of the planned minibus.” The CSM asked the customer relations official at the airport to pass on apologies from the movement controller and the minibus driver for the distress and discomfort that the complainant experienced. The customer relations official said that “this level of service falls very short of the service we expect to deliver” and that the airport had recently ordered another type of chair which can be used on the aircraft that was in use on the 19.10 flight from English city to Dublin on December 16th. The CSM concluded her mail by saying that they would ensure that lessons can be learned to improve their services.

Response to the Service Providers’ Explanations

The complainant’s understanding is that her request for special assistance, which she requested from Airline B when she booked her flight, is automatically sent to the wheelchair lift provider at the airport and was verified on her booking confirmation email. In response to her complaint, she has been informed that there was a miscommunication with the wheelchair lift provider that resulted in an ambi-lift not being brought to the aircraft to help her to embark. She said that her experience was not a failure to communicate, but “point blank discrimination and humiliation,” starting with the ground crew member at the airport who sought to tell her what she could and could not do in respect of her disability. The crew member confirmed that she was aware of the request for special assistance, but she said that because there were “only two or three steps,” the complainant “should be able to manage.” The crew member printed the complainant’s boarding pass without offering any reasonable accommodation and reluctantly pointed her in the direction of the special assistance team.

On February 7th 2020, the complainant sent ES1 forms to Airline A and Airline B, seeking an explanation for how she was treated as she boarded her flight on December 16th 2019. In response, she was informed that Airline B “automatically sends assistance request messages” to the wheelchair lift provider and that, after that, the service is not within the remit or control of Airline B or Airline A. The complainant argues that this is inadequate, as neither airline did anything further to ensure that the service she requested was provided to her. She claims that if her request for assistance had been taken seriously, the ground crew would have made a reasonable effort to accommodate her.   Instead, she said that she was effectively abandoned at the check in desk, was provided with a sub-standard and discriminatory service and was humiliated as a result.

The complainant argues that Airline A’s claim that they fulfilled their duties in accordance with EU regulations is “simply a cop-out and a failure to be held accountable.”  

In summary, the complainant’s case is that she purchased a flight from Airline B, who had an agreement with Airline A to operate the flight from the city in England to Dublin on December 16th 2019, and that, as the carrier, Airline A is responsible for ensuring her safe transfer onto the aircraft. She is not satisfied with the response received in the ES2 form on March 6th 2020 and she now seeks redress in accordance with Section 27 of the Equal Status Act 2000.

Background

On October 6th, in advance of the hearing of this complaint, Mr Hyde, of Alastair Purdy and Company, Solicitors, provided a written submission in response to this complaint on behalf of Airline A. The submission confirms the chronology of events and most of the facts as they have been set out by the complainant. Mr Hyde submitted that the blame for the failure to provide an ambi-lift or an avi-ramp to assist the complainant to board her flight lies with the wheelchair lift provider, the company contracted to provide services to people with disabilities. Mr Hyde said that all procedures were carried out to notify that company of the required assistance. Airline A submits that it is the function of the wheelchair lift provider to provide assistance at the airport and “the service thereafter is simply not within their remit and / or control.”

Legal Position

Mr Hyde referred to Regulation 1107/2006 concerning the rights of people with disabilities and those with reduced mobility when travelling by air. Article 6 is headed “Transmission of information” and provides that:

“(1) Air carriers, their agents and tour operators shall take all measures necessary for the receipt, at all their points of sale in the territory of the Member States to which the Treaty applies, including sale by telephone and via the Internet, of notifications of the need for assistance made by disabled persons and persons with reduced mobility.

(2) When an air carrier or its agent or a tour operator receives a notification of the need for assistance at least 48 hours before the published departure time for the flight, it shall transmit the information concerned at least 36 hours before the published departure time for the flight:

(a) to the managing bodies of the airports or departure, arrival and transit, and

(b) to the operating air carrier, if a reservation was not made with that carrier, unless the identity of the operating air carrier is not known at the time of notification, in which case, the information shall be transmitted as soon as possible.”

In the Regulation, “managing body of the airport” or “managing body” is defined as “a body which notably has as its objective under national legislation the administration and management of airport infrastructures, and the coordination and control of the activities of the various operators present in an airport or airport system.”

Article 8 (1) of Regulation 1107/2006 provides that,

“The managing body of an airport shall be responsible for ensuring the provision of the assistance specified in Annex 1 without additional charge to disabled persons and persons with reduced mobility.”

Annex 1 sets out in list form the assistance to be provided by the managing bodies of airports.   Included in the list is assistance and arrangements necessary to enable disabled persons and persons with reduced mobility to,

“board the aircraft with the provision of lifts, wheelchairs or other assistance needed, as appropriate.”

Evidence of the Head of Ground Operations

At the hearing, Airline A’s head of ground operations, “HO,” clarified the relationships between the various companies involved in sales, flight operations and the provision of airport services. There is a franchise agreement between Airline A and Airline B for this particular route.   Flights are sold on Airline B’s website and Airline A is the carrier. The airport authority is the managing body of the airport and the provision of services to people with disabilities is sub-contracted to the wheelchair lift provider. A fifth company operates the check-in procedures.

HO clarified that, contrary to the complainant’s impression at the airport, the member of the ground crew at the check-in desk was not wearing an Airline B uniform, but was an employee of the company operating the check-in procedures.

The wheelchair lift provider was informed, 36 hours in advance of the departure of the flight at 19.10 on December 16th, that the complainant required assistance to embark the aircraft. HO produced evidence at the hearing that this communication was sent to the wheelchair lift provider.

HO said that, when the flight arrived in Dublin, the cabin crew reported the incident on the cabin flight report. A copy of this report was sent to the WRC on October 19th and under the heading, “Ground Handling Comments” the following remarks are inserted:

“Lady PAX (9F) X to Dub. Was pressurised by X services to walk up the steps. They told the lady that there was no equipment at the time to lift the lady on board. Lady was very patient and kindly walked up the steps with difficulty.”

Included with the correspondence from Airline A on October 19th was a copy of a Safety Bulletin dated January 2020 and with the heading, “SCP Handling.” I understand that “SCP” is a EU designation that refers to people with reduced mobility and people with disabilities.   This document was compiled after the incident on December 16th 2019 and HO said that it was evidence of the company acting on a report of bad service. The bulletin states that,

“All necessary measures shall be taken to ensure that the dignity of all customers including disabled persons and persons with reduced mobility are respected.”

Regarding aircraft embarkation, the bulletin states:

“Handling Partners, Cabin Crew and SCP Partners shall verify with the passenger their ability to manage the steps of the aircraft.”

HO said that Regulation 1107/2006 provides that the managing body, and the body responsible for providing a service to people with disabilities is the airport. At this airport, this responsibility was sub-contracted to the wheelchair lift provider. HO said that her understanding is that the service is audited by the managing body of the airport.

Conclusion

While Airline A accepts that the complainant has certain rights guaranteed under the Equal Status Act, they contend that, for the purpose of Section 4(1)(b), in respect of her claim of discrimination on the ground of disability, Airline A is not the service provider, as required by Section 5(1). For this reason, Mr Hyde requested that this complaint be dismissed in accordance with Section 42(1) of the Workplace Relations Act 2015, as, in his view, it is misdirected.

The Legal Framework

The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is clearly set out at Section 4(1) of the Equal Status Act 2000, “the Act:”

(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.

Subsection (6)(b) tells us that a “service provider” is,

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

Section 5(1) is the opening section of Part II of the Act, titled, “Discrimination and Related Activities.” This section specifically addresses the disposal of goods and the provision of services:

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

It follows therefore that, in accordance with these objectives, as a person with reduced mobility, when accessing the services of an airline, the complainant is entitled to be provided with reasonable accommodation, in her case, the use of a wheelchair lift, to enable her to travel by air safely and in comfort.

Section 46 of the Act considers the specific application of the legislation to ships and airlines:

(1) The provisions of this Act shall extend to and apply in respect of any ship or aircraft registered in the State that is operated by a person who has a principal place of business or ordinary place of residence in the State, whether or not the ship or aircraft is outside the State.

(2) An act which—

(a) is done on or in respect of such a ship or aircraft while subject to the jurisdiction of a country outside the State, and

(b) is required to be done to comply with the law of that country,

shall not constitute discrimination for the purposes of this Act.

Regulation 1107/2006 clarifies who is responsible for the provision of assistance to people with reduced mobility at airports and on airlines. Paragraph 16 of the Preamble indicates the process for dealing with complaints, which may be escalated to the regulatory body for the airline industry in each EU State. For my part, as the adjudicator in this matter, my jurisdiction is under the Equal Status Act. My responsibility is to enquire into this complaint as a potential breach of Section 4(1) of the Act regarding discrimination against a person with a disability and, to determine if there was a refusal or a failure by the respondent to do all that is reasonable to accommodate the needs of the complainant, so that she could travel safely and in comfort.  

Consideration of the Facts

The facts of this case have been clearly set out and are not in dispute. To summarise, the complainant purchased an airline ticket through Airline B for a flight operated by Airline A, a partner carrier.   As she waited to board her flight to Dublin on December 16th 2019, she was not provided with assistance to embark the aircraft using an ambi-lift or an avi-ramp. Instead, she was pushed up the steps by a minibus driver, causing her pain, distress and humiliation. Based on these facts, it is clear to me that the complainant has established that, contrary to Section 4(1) of the Act, she was discriminated against on the disability ground.

Findings

On behalf of Airline A, Mr Hyde did not dispute the complainant’s description of what occurred, but he asserted that the airline was not legally responsible. On the ES2 form, Airline A said that the responsibility for the passenger reduced mobility service lies with the airport and their contracted service provider. Airline A’s position is that their responsibility ends when they communicate the need for assistance to the contracted provider. For reasons I will now set out, I find that that this argument is flawed.

I understand that the provision of assistance to people with disabilities at an airport is designated, under Article 8 of Regulation 1107/2006, to the managing body of the airport. An airline passenger however, has no contractual relationship with the managing body of an airport and they rely on the airline from whom they purchase their flight, or the airline operating the flight, to provide the assistance that they require. It is clear to me that, in the case of an airline passenger, it is the airline who, as set out at section 5(6)(b) of the Act, is “the person responsible for providing a service,” including any assistance that may be required to board and disembark an aircraft.

Section 4(1) of the Act provides that discrimination occurs when a service provider fails or refuses to do all that is reasonable to accommodate the needs of a person with a disability. When the complainant was driven to the bottom of the steps to board the aircraft, observing that she had extreme difficulty climbing the steps, the crew failed to act to accommodate her needs. All that was required, even at that late stage, was a request to the special assistance provider to make a wheelchair lift available. The failure to do something reasonable at that point resulted in the complainant being treated disgracefully, where she was observed by passengers and crew struggling with her disability to climb the steps onto the aircraft.

The focus of Section 4(1) of the Act is on the failure “to do all that is reasonable” to accommodate a person with a disability. It follows therefore, that, for discrimination not to occur, a service provider is required to act affirmatively and to do all that is reasonable to accommodate those needs. Accepting that the provision of special assistance is designated to the managing body of an airport, the responsibility of an airline is “to do all that is reasonable” to ensure that, if their passenger requests special assistance, that the required assistance is available. This must mean more than simply setting up an electronic communication with the contracted provider.

On the evening of December 16th 2019, on the flight to Dublin, it would not have been unreasonable, nor would it have resulted in any significant cost or inconvenience, for someone from Airline A to check with the provider of the wheelchair lift, to confirm that their passenger with a disability was provided with the assistance she requested. The existence of an EU regulation cannot be an excuse for not acting in the interests of a person who is in need of, and legally entitled to assistance.

It is of note that a crew-member on the return flight checked that a lift was available when the plane arrived in Dublin. It was not beyond the bounds of reasonableness that the same practicality could have been applied at the time of boarding. The respondent’s January 2020 Safety Bulletin is dedicated to the issue of passengers who require special assistance and opens with the following instruction:

“All necessary measures should be taken to ensure that the dignity of all customers including disabled persons and persons with reduced mobility are respected.”

From this, it is clear to me that Airline A, as the provider of a flight service, is capable of taking any “necessary measures” to provide an adequate service to a person with a disability, and that, on the night of December 16th 2019, this did not happen.

In conclusion, I find that Airline A failed to do all that was reasonable to ensure that the complainant received the service that she requested and that this failure caused her unnecessary distress, inconvenience and humiliation. I find that her complaint that she was discriminated against on the ground of her disability is well founded.

For the reasons set out above, I have decided that the complainant was discriminated against contrary to Section 4(1) of the Equal Status Act 2000 – 2015. In terms of redress, Section 27(1) of the Act provides that:

…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

I make an order that the respondent, who I have referred to in this decision as “Airline A,” pay the complainant €8,000, as a measure of compensation for the discomfort and humiliation she suffered. I further order the respondent to put in place a process to check that, at boarding and disembarking, where a passenger with a disability or reduced mobility has requested assistance, that such assistance is provided.

Discrimination, disability, airline, airport