Complainant

Respondent

Anonymised Parties

A Customer

An Airline

Representatives

Barry O'Donoghue Ferrys Solicitors

Dermot Kilbane Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00028436-001

15/05/2019

The Complainant is alleging under the Equal Status Act that he was discriminated against on the disability ground in relation to a service provided by the Respondent. The Respondent refused to allow him to fly business class to Washington in January 2019 and booked into an economy seat. He is claiming that the Respondent failed to provide him with reasonable accommodation pursuant to Section 4 of the Equal Status Act 2000 as amended.

On the 18th of November 2018 the Complainant booked 3 return flights in business class to fly to Washington DC in January 2019. Two personal assistants were travelling with him to assist him throughout the flight. The Complainant suffers from multiple sclerosis and he is quadriplegic.  He uses a special 5 point harness because of his disability he cannot sit upright independently in an aircraft seat without support.

The Complainant is a member of a scientific steering committee of the Progressive MS Alliance which is an international collaborative research alliance to develop a treatment for progressive multiple sclerosis and this involves attending three meeting internationally per annum. In the past the Complainant travelled with the Respondent’s airline to San Francisco in May 2016, to Washington in February 2017 and to Toronto in May 2018. He said that the airline requires that disabled passengers provide 48 hours’ notice to the airline of his special needs. He said that he travels business class because it is more comfortable, he can recline the seat and lie down preventing sore pressures from being in a sitting position during long flights.

In May 2016, when the Complainant booked the business class to San Francisco flight, he contacted the airline well in advance to give notice of his disability and he was given permission to travel. He was advised by the Respondent airline that a named brand harness was suitable and the one recommended by the company and he purchased same. When he arrived at the airport he handed in in the harness to the airline staff at check-in and it was fitted to his seat by an engineer. He was transferred to his seat and the harness was strapped closed and the control switch for the reclining seat was enabled and disabled by the cabin crew when he wished to move the seat position. He said that his care assistants took care of all his needs on the flight. He had no difficulty on the flight and the same procedure applied on the return journey. He travelled with the Respondent airline to Washington and Toronto the following two years and the same procedures applied with fitting the harness and he had no difficulty on these flights either.

The Complainant said that on the 20th of January 2019 he was due to fly to Washington in business class to attend the conference. On the 14th of January 2019 he emailed the Respondent with INCAD (Incapacitated Passengers Handling Advice) form, like the one provided for the three previous flights.

On the 18th of January 2019, the Complainant said his wife received a telephone call and an email from the special assistance team of the airline advising him that he could not travel in business class and that he would be required to sit in the back row of the plane in economy a non-reclining seat. His wife explained that he needed to travel in business class as he needed to recline the seat during the long journey. She was told that the airline did not allow the use of the special harness in business class.

The Complainant pointed out to the airline that he had already travelled in business class on three other occasions using the harness and he was informed that the policy had changed, and he could no longer use the harness in business class. The Complainant said at one stage he was told by the Respondent that his flight had been cancelled. He was then informed that the only place they could have accommodation for him was in economy class at the back row where the seats did not recline. The Complainant said that because it was a very important meeting he was attending, he decided he would accept the economy seat which is located at the bulkhead and did not recline. He said it was a very difficult journey, he was very uncomfortable as he was sitting in the one position for the duration of the long-haul flight and he was sore and had red marks for weeks afterwards. He was unable to work on the first day he was in Washington because he needed to lie down to recover from the ordeal of sitting upright for such a long time. On the return journey, the airline staff tried to accommodate him as much as possible and put him in the front row of the economy section where the seat reclined a bit, and this reduced the pressure on his body, but it was not as comfortable as the business class.

Legal Submission

The complainant’s solicitor submitted that the Respondent failed to provide reasonable accommodation to the Complainant pursuant to Section 4(1) of the Equal Status Act when he was refused permission to travel in business class. He noted that the 2016 flight was a test flight and a report was prepared afterwards by the respondent. He submitted that the report prepared by the Engineer after the 2016 flight could not have been a detailed analysis of the situation, given that 9 months later a specialist engineer from the Respondent emailed the seat manufacturer in response to the Complainant’s booking in business class and the request to use the 5 point harness. It was submitted that the manufacturer, in response, did not say that the harness could not be used with the electric seat, it only said that it would not recommend its use and went on to say that any decision on the use of the harness must be made by the airline. The Complainant was allowed to use the harness on that occasion and had flown 6 times using it in business class without any difficulties arising before he was refused in January 2019. It was the Respondent’s decision not to approve the harness.

It was submitted that there is an obligation on the respondent to provide reasonable accommodation to the complainant and they failed to do so.

The Respondent denies that the Complainant was discriminated against on the disability ground. They submitted they were not happy that the harness the Complainant was using could safely interact with the business class seat and it could only be used by passengers travelling in the bulkhead seats.

An engineer in the Respondent company who works in the special needs area said he has been dealing with technical matters for special needs passengers for 16 years. He said the company upgraded the seats in the business class to fully electric seats in 2016 and the special harness is not approved for use with these new seats. In 2016 when the Complainant requested to use the harness on the business seat his view was that they could not accommodate him. The Engineer said that he decided however to carry out a controlled flight and allow the Complainant to use the harness. He said that he sought approval from the IAA and met with the flight crew and the cabin crew beforehand to advise them about the use of the harness by a disabled passenger. The Engineer said he fitted the harness to the seat and he seated the Complainant in the front row in business class where there are no airbags. He instructed the cabin crew to observe the operation and to power on and off the seat during the flight as required and to report back to him on the operation of the harness.

After the flight, the Engineer said that he spoke to the cabin crew and they told him that they were not comfortable operating the power switch and they found it awkward and it was easier for them to leave the power switch on. He said he did not get a written report. He said that the use of the harness in an emergency situation where the seat was powered off would increase the workload of the cabin crew and could give rise to safety issues. He said the seats are fully powered electric seats with a lot of electronics housed in the back of the seats and his view is that no harness is compatible with the seat. He believes that there are safety issues attached to operating the harness with the seat. There are long straps and the harness and there is a danger that these straps could become entangled in the seat back actuator mechanism. If the electrical power to the seats was improperly isolated or reapplied it could cause injury to the Complainant if there was an inadvertent movement.

He said that the seat manufacturer did not recommend using the harness with their seats and the Federal Aviation Authority in the US had not approved the harness. There are airbags fitted to the business class seats and cannot be disconnected to avoid problems with the harness or other assistive devices. The Engineer said after having considered the safety issues and the extra workload on the cabin crew, he could not recommend the use of the harness in business class seats and made a report and instructed that the harness should not be used.   The Engineer accepted that despite giving an instruction that the harness was not to be used in business class seats that the Complainant travelled on two return long haul flights during 2017 and 2018 with the harness. He said that his approval was not sought for these flights.

The Engineer said that Complainant was refused permission to travel in business class in 2019 because of these safety concerns. He was offered a seat at the bulkhead in economy class because it is unsafe to put the harness straps around a seat with a monitor at the back because it could cause an electrical problem for the aircraft.

Legal Submission

It was submitted that the Complainant was not discriminated against on the disability ground or that the Respondent failed to provide him with reasonable accommodation in the provision of their services. The Respondent’s solicitor submitted that an air transport service was not refused to the Complainant, but the service can only be provided to him in the economy cabin to meet safety concerns which the Respondent has identified arising from the Complainant's harness which cannot be fitted to business cabin seats. It was submitted that the requirement to provide reasonable accommodation under section 4(1) of the Equal Status Act is subject to the stipulation in section 4 (4) which provides:

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.

(4) 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.”

These requirements are however subject to the right to refuse a reservation in order to meet applicable safety considerations and requirements established by International Law, the EU or national law or by the Irish Aviation Authority.

The establishment of procedures to meet aviation safety requirements in the carriage of passengers is under EU and Irish law the responsibility of individual airline operators

EU Regulation 1107 of 2006 govern the obligations on airlines as well as the rights of disabled persons with reduced mobility when travelling by air. It provides at Article 3:

“An airline must not refuse to accept on the grounds of disability or reduced mobility “

Annex 11 provides:

“the making of all reasonable efforts to arrange seating to meet the needs of individuals with disability or reduced mobility on request subject to safety requirements and availability”

It was submitted that the establishment of procedures to meet aviation safety requirements for the carriage of passengers is, under EU and Irish Law, the responsibility of the airline operator.

The EU Regulation 1899 of 2006 on aircraft operations provides:

“(a) An operator shall establish procedures for the carriage of persons with reduced mobility (PRMs)”

The EU Regulation 965 of 2012 on aircraft operations technical requirements provides:

(a) “Persons requiring special conditions, assistance and/or devices when carried on a flight shall be considered as SCPs including at least: (1) persons with reduced mobility (PRMs)..

(b) SCPs shall be carried under conditions that ensure the safety of the aircraft and its occupants according to procedures established by the operator.” (CAT.OP.MPA.155)

CAT.OP.MPA.155 Carriage of special categories of passengers (SCPs)

“When establishing the procedures for the carriage of SCPs, the operator shall take into account the following factors :..(d) any of the factor(s) or circumstances possibly impacting on the application of emergency procedures by the operating crew members.”

It was submitted, that in an emergency situation where the seat was powered off it would increase the workload of the cabin crew and there was a danger the straps of the harness could become entangled with the seat electrical mechanism. The Engineer decided for all the reasons outlined in evidence that it was not safe to allow the Complainant travel in business class.

The issue for determination in this complaint is whether the Respondent discriminated against the Complainant contrary to Sections 3 and 4 and 5 of the Equal Status Act 2000 (as amended), in relation to the provision of a service.

Section 3(1) provides: “For the purposes of this Act discrimination shall be taken to occur— (a) 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 grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”

…………

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) 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”),”

Discrimination on ground of disability.

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.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers 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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination.

(4) 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.”

5.—(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.”

The question for consideration is whether the Respondent failed to provide the complaint with reasonable accommodation pursuant to Section 4 of the Act when he was refused permission to fly in business class. The Complainant has MS and is quadriplegic and booked business class because the reclining seat would allow him to change position and lie down during a long flight to take pressure off his body.     Because of his disability the Complainant requires a 5 point harness to keep him sitting upright and its use is not permitted in business class seats. The Respondent’s case is that there were safety concerns around the use of the harness on the electric seats it was decided to refuse permission to fly in business class.

I note that in May 2016, the Complainant did a return journey to San Francisco in business class using the harness. I note that the Complainant consulted with the airline and the particular brand of harness was recommended to him for use on the flight. The Respondent said in evidence that this was a test flight under controlled conditions to monitor the operation of the harness on the new electronic seats which had recently been fitted in business class. The cabin crew were instructed to carry out monitoring procedures including powering on or off the seat as and when the Complainant required to lie down or was required to be in a seated position for take- off or landing and when required by the flight crew.

The Engineer said that he got a verbal report from the crew following the flight and they told him that the operation of the power switch was awkward, and it was easier for them to leave It on. The Engineer said that having reviewed the 2016 flight, he produced a report and made the technical decision that the harness could not be safely used on the fully powered electric seats in business class. This report was not produced in evidence. It is difficult to understand how the decision on the suitability of the harness could have concluded it was not suitable given that the cabin crew on the test flight did not follow the Engineer’s instructions and the only comment made about the interaction of the harness with the electric seat was that it was awkward, and it was easier to leave the seat powered on.

It is clear that The Engineer’s report and conclusion on the suitability of the harness was not the definitive decision on the use of the harness given that the Complainant made two further return flights in business class in 2017 and 2018. I note that the Complainant’s evidence was that there were no difficulties with any of these flights and the cabin crew powered on and off the seat as and when he wanted to reposition, and his 2 care assistants took care of all his other needs.

I further note that before the flight in 2017, the Respondent raised a query with the seat manufacturer about the use of the harness. The seat manufacturer in an email said it was not FAA approved, that they had no test information on the harness nor could they recommend it. The manufacturer went on to say that the decision to use the product must come from the airline and they also offered to provide feedback from another customer who had enquired into a similar harness. There was no evidence that the Respondent followed up any further with the seat manufacturer to get the feedback promised and neither did the Respondent carry any further tests. In fact, the Respondent allowed the Complainant travel in business class again with the harness in 2018.

I note that the Engineer said that he made the decision in 2019 that the complainant could not travel to Washington in business class using the harness based on the report he made in 2016 and that he was not aware, nor had he approved the Complainant’s travel in business class in 2017 and 2018. I am of the view however that he had knowledge of the 2017 flight given that he was cc’d on the emails which passed between the Respondent and the seat manufacturer. While it is imperative that safety is a paramount requirement for the Respondent, there is nonetheless an obligation upon the respondent to verify the performance of the equipment before refusing a person with a disability permission to fly in business class. Given that in January 2019, the Complainant had completed a further 4 flights (in total 6 flights) in business class with the harness with no issues raised by the cabin crew regarding safety or any other concerns about the harness, it was incumbent on the respondent to take these facts into consideration before refusing him permission to fly in a business class seat. Furthermore, I note that that the complainant was accompanied by 2 care assistants, who took care of all his needs on the flight, and no consideration was given to this fact or how they could assist further with the complainant’s needs in a business class seat wearing the before making the decision to refuse to allow him to fly in business class.    

Section 4(1) above obliges a service provider to do all that is reasonable to accommodate a person with a disability by providing special treatment or facilities. The reasonable accommodation and the special treatment the Complainant required was to travel in a reclining seat in business class and to wear the harness to keep him upright when required. For all the above reasons, I am satisfied that the Respondent failed to do all that was reasonable to provide accommodation for the Complainant in business class. While the Complainant was able to travel to Washington in an economy seat the flight was unduly difficult for him given that he could not recline the seat.  

The Respondent submitted that the defence under Section 4(4) of the Act cited above applies. I find that there was no evidence presented to support the Respondent’s contention that the Complainant was likely to cause harm to himself or others if he was allowed to travel in business class wearing the harness.

I find that the Respondent discriminated against the Complainant pursuant to Section 5(1) of the ES Act and in terms of Section 4(1) of that Act.

I have concluded my investigation of this complaint and for the above reasons I find, pursuant to Section 25(4) of the Acts, that the complainant was discriminated against on the disability ground pursuant to Section 5(1) and in terms of Section 4(1) of that Act.

Under section 27(1) of that Act redress may be ordered where a finding is in favour of the complainant. Section 27(1) 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.

(2) The maximum amount which may be ordered by the Director of the Workplace Relations Commission] by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.”

Under the above Section the maximum amount of compensation I can award is €15,000. In considering the amount of compensation that I should award pursuant S. 27(1)(a) above, I can take into consideration the effects of the discriminatory treatment had on the Complainant. I note that the booking in business class was cancelled less than 2 days before the Complainant was due to travel which caused him considerable stress and anxiety. He was then seated in an economy seat which had very little recline. He found the long flight extremely difficult and uncomfortable because he could not be repositioned. He said that he found the journey distressing and was extremely sore because he was sitting in the one position for the duration of the flight and he was unable to work the following day and had to spend the day in bed recovering.   I note that the complainant was also put in an economy seat on the return journey and while it was not as uncomfortable as the outward journey he could not lie down. Taking these factors into account, I am of the view that the prohibited conduct is at the higher end of the scale. Having regard to all the circumstances and pursuant to Section 27(1)(a) of the Act, I find that an award of compensation in the amount of €10,000 is appropriate in the circumstances.

I order the respondent to pay to the complainant the sum of €10,000 (ten thousand euro) compensation for the effects of the prohibited conduct.

Pursuant to Section 27(1)(b) of the Act, I order the Respondent to put in place reasonable accommodation to enable the complainant to travel in business class when he next purchases business class tickets.

Equal Status Act Section 3(1) less favourable treatment, Section 3(2)(g) disability ground, Section 4(1) reasonable accommodation, Section 5(1) prohibition of discrimination.