Complainant

Respondent

Parties

Brian McGuire

CIE

Complainant

Respondent

Anonymised Parties

Representatives

In Person

Mr. Hugh-Hannon, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029491-001

05/07/2019

This is conjoined with case ADJ-00023290

The claimant is alleging that he was discriminated on the grounds of disability and / or sexual orientation by the respondent company on the 15th of April 2019 in relation to access to a service.

The respondent rejects the claim and contends that the driver had never seen the claimant before and was not aware that the claimant had a disability and was not aware of his sexual orientation.

The claimant sent a ES1 Form and notification of discrimination under the Equal Status Act to the respondent stating that he had been treated unlawfully on the basis of his sexual orientation and his disability.

The claimant is claiming that he was treated less favourably and had been treated unlawfully on the basis of his disability and/or sexual orientation.

The claimant states that he boarded a bus ahead of his partner whom he is the primary carer to.

He submits that he witnessed the driver of the bus behaving aggressively towards his partner, in relation to an allegation by the driver that he was covering his photo identification on the bus pass.

The claimant submits that he immediately intervened and informed the driver that his partner was not hiding his bus pass photo identification.

A verbal altercation then took place between the claimant and the bus driver following which both passengers took their seats on the bus.

The claimant submits that they were both shaken by the interaction with the bus driver and, on arrival at their destination, a further altercation took place where the personal space of his partner was invaded by the bus driver.

The claimant made a complaint on their behalves to the residing bus Inspector who duly noted the details.

Having arrived at the terminal for the return journey the claimant stated that their access was blocked as they both attempted to board the bus.

The driver on this occasion was the same driver that was involved in the incident earlier in the day.

The claimant submits that the bus driver lunged at them in an aggressive and hostile manner. The claimant also submitted that it was his right to make a complaint following the mistreatment of his partner by the bus driver.

Both the claimant and his partner were refused entry to the bus which was the last bus leaving the terminal for their destination on their return journey.

The claimant submits that the respondent company permitted a member of their staff to discriminate and victimise them for having made a complaint, the result of which was to make them become very stressed, fearful and publicly humiliated.

The respondent’s position is that the driver of the vehicle believed he saw the claimants companion place his hand over the travel pass as if to block the drivers view of the bus pass and, when the driver challenged this, it led to a tirade of abuse from the claimant who had boarded the bus in advance of his companion.

He further submits that it was the abuse from the claimant that led the driver to refuse entry to both individuals on the return journey thereafter.

The respondent’s position is that the driver had no way of knowing that either of the passengers had a disability nor had he any way of knowing their sexual orientation.

The respondent submits that the driver had never previously seen either individual prior to the day in question.

The respondent company position is that all drivers are entitled and obliged to protect income and, if necessary, to ascertain whether any fare evasion was taking place.

The respondent contends that the drivers have a right to ban passengers under the bye laws that apply to the respondent company.

They reject any suggestion of discrimination in the instant case.

The matter for decision is whether the respondent discriminated against the complainant on two of the prohibited grounds under the Equal Status Act, namely the Disability ground and the Sexual Orientation ground.

I must first consider whether the existence of a prima facia case has been established by the complainant.

Section 38 (a) of the Equal Status Act sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish in the first instance facts upon which he/she can rely in asserting that prohibitive conduct has occurred in relation to him/her.

It is only where such, a prima facia case has been established, that the onus shifts to the respondent to rebut the inference of discrimination raised.

Section 3 (1) (a) of the Act provides inter alia that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the prohibitive grounds specified in subsection 2 of the Act referred to as the “discriminatory grounds”.

Section 2 (1) defines ’disability’ to mean:

a)      The total absence of a person’s bodily or mental functions

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

c)       The malfunction or disfigurement of a part of a person 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 or illness which affects a person’s thought process, perception of reality, emotions or judgement which results in disturbed behaviour

Section 2 (2) (d) defines ‘sexual orientation’ to mean:

(d) That they are of different sexual orientation

The incident in question occurred on 15th April 2019.

There is no dispute between the respondent and the claimant that a verbal altercation took place between the claimant and the bus driver on the afternoon of the 15th of April 2019 and prior to the return journey on the evening of the same day which resulted in the claimant and his partner being prohibited from boarding the bus for the return journey to their destination.

This ultimately resulted in a claim of discrimination on the grounds of disability and/or sexual orientation.

The respondent denies the claim of discrimination on the stated prohibited grounds.

Having carefully considered all of the evidence in the instant case, both written and verbal, I prefer the evidence of the respondent as I found the respondents evidence more convincing.

The bus driver, who has considerable experience, stated he had no prior knowledge of the claimants and they were strangers to him.

I am satisfied that the driver was following the standard operating procedures of the respondent company when he asked to see the bus pass of the claimant’s partner, an action that I believe was not tainted by discrimination as defined in the Equal Status Act.

However, there was an acknowledgement from the respondent in evidence adduced at the hearing that the driver was informed that the claimant and his companion were partners.

The respondents maintain that the driver was operating within the relative bye laws in refusing to allow the claimant entry to the bus for the return journey.

Good customer care and practice would dictate that the complaint should have been dealt with differently, a point acknowledged by the respondent.

It was unfortunate that the claimant was not allowed to take the return bus journey home as it was the last bus leaving for his destination on the evening in question.

However, I am satisfied that the reason was not attributable to the claimant’s sexual orientation and/or disability.

During the hearing the claimant indicated his wish to withdraw his claim of discrimination on the grounds of sexual orientation but when the procedure for withdrawal of the claim was explained to the claimant he reserved his position and, at the conclusion of the hearing, did not withdraw same.

During the evidence it became clear that the Equality training provided to staff of the respondent company was to some extent limited.

On this basis it is clear that the respondent company should review the Equality training it provides to its staff who interact with the public.

Having carefully examined all of the evidence, both written and verbal, I am satisfied that the claimant was not treated less favourably on the grounds of disability and /or sexual orientation.

By being refused entry on the bus on the day in question I find that a prima facia case of discriminatory treatment on the grounds of disability and /or sexual orientation was not established by the complainant and, as a consequence, the complaint fails

Disability

Sexual Orientation