Complainant

Respondent

Anonymised Parties

A Public Transport Service user

A Public Bus Transport Company

Representatives

Self-Represented

Legal Department of the Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029825-001

23/07/2019

The issues in contention concern a number of incidents and verbal exchanges with a Bus Driver related to a Passenger with a Disability, accompanied by his Mother, attempting to board a Bus.

The alleged incidents took place at a bus stop outside a major west Dublin Disability Hospital.

The major Complainant, a Mother, has a child with a recognised disability. The Child was used to a fixed routine of travelling, accompanied by his mother - his recognised carer - to a special Support facility in a Hospital located in a West Dublin suburb. As his mother does not have access to a car the journey (out and return) is accomplished by means of the public City Bus. The minor Complainant travels in a Push Buggy.

The Complainant (the Mother) always arranged to make the return journey by an early afternoon bus (circa 15:25) that would be relatively quiet and have plenty of passenger space prior to the later buses filing up with evening commuters.

On the day in question, (the 25th January 2019) the 15:25 service arrived somewhat late and was crowded. Six passengers got off at the Hospital Stop and the Complainants boarded. The Driver told them that the bus was full and to get off as he did not have enough room. The Complainant’s Mother queried this with the Driver and a verbal exchange followed. The bus driver stopped the Bus engine and roughly advised other passengers that the Complainant was causing a problem. He threatened to call the Gardai to have her and her son removed. Eventually a male passenger got off and offered his space to the Complainants. The passengers who were standing then moved down the bus and the Complainants were accommodated. A Female Passenger in a distinctive Orange Hoodie then verbally abused the Complainants and engaged in conversation with the Driver while he was driving. The Driver did nothing to stop this verbal abuse and joked with the Orange Hoodie passenger.

At the end of her journey the Complainant asked the Driver his name, but he refused to answer and told her to “**** Off”.

The entire incident completely traumatised the Complainant and was most upsetting to her son. She now feels afraid to travel by bus, for fear of a repeat incident. She feels that she was Discriminated against on the Grounds of Gender, Disability, Reasonable Accommodation, Refusal to provide Goods & Services and Victimisation. She obtained the on-board Bus CCTV and used it in evidence.

The Respondent is a major bus Company in the Dublin region. It has extensive Equal Opportunities training programmes in place for almost 1,000 drivers. A key responsibility for a Driver is the safety of the bus and the passengers on board. Quite often as the “Rush Hour” commences a judgment call is required from a Driver regarding the passenger numbers on board particularly when a bus is almost at or at maximum passenger capacity.

In the case in question the Driver acted properly in using his judgement that the bus was unable to accommodate the Complainant and her buggy. There was no evidence of any of the Discriminatory Grounds being relied upon. The Driver of the Bus in question gave detailed Oral evidence of the incident in question. He had, on his return to his base, requested that the CCTV be saved for him and he was conscious that the Complainant was likely to raise an issue. The CCTV was played to the Adjudication Hearing. While it does not have an audio track it showed the incident in full. The Bus Company Legal representative maintained on the basis of the Driver oral evidence and the CCTV tape that nothing untoward had happened save for a Bus Driver making a perfectly legitimate judgement that his bus was full and asking the Respondent to wait for a following bus. The mention of the Gardai had come, as is normal practice, via the Bus 2-way radio from Bus control.

There was no Discrimination and no grounds under the Equal Status Act, 2000 for any actions.

3:1       The context and background to this case.

Health & Safety and Equal Status cross over.

In this case there was considerable discussion at the Hearing on the background to the case.

The Complainant and her son were regular users of the Number XX bus from their home to the Facility in question. It is a large-scale West Dublin Facility for Disability patients many of whom are regular bus users.

Unfortunately, it is also located on a major commuter route into the City which gives rise to challenges, especially passenger overcrowding, for bus drivers on the route.

Having heard extensive Oral evidence from both Parties and viewed the On-Board Bus CCTV it was clear that a conflict of opinion had arisen between the driver of the Bus and the mother of the minor involved. There were extensive discussions between the Parties on this point. Considerable exchanges took place as to how crowded the Bus actually was. It was clear however that passengers were standing in the aisle downstairs and a wheelchair user was already on board.

Two conflicting “Rights” became apparent - firstly the Health and Safety duty of a Bus Driver to manage his vehicle and in particular the right to have the last word as to the loading and the numbers of passengers on board. This clearly involved having the right to refuse boarding to passengers when it was felt that to do so would overload the Bus and endanger safety.

However, and in conjunction, the Equality and Equal Status Rights of potential passengers not to be discriminated against, in contravention of the Equal Status Act,2002, by a Bus Driver and by extension the Bus Company, in exercising his Bus Loading/Safety functions.

The Relevant Law

In this case the relevant Law is the Equal Status Act, 2000.

In any Discrimination claim the first Legal issue is the requirement to establish a Prima Facie case, in other words to establish a good factual basis on which to proceed.

Section 38 A (1) refers.

Burden of proof.

38A

38A.—(1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

Section 27 sets out the Redress which may be ordered.

27.— (1) Subject to this section, the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25may 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.

However, it is also important that the Spirit of the Act of 2000 be kept in mind and not lost in an overly legal process or in this case Adjudication finding. Any Adjudication finding should be focused on improving, if possible, the position for the parties. This is particularly the case in this Adjudication.

All cases rest on their own facts and evidence and I will now consider these.

3:2       Consideration of the Evidence presented.

The Complainant, the mother of a son with special needs, was very forceful in an almost advocacy manner for her son and also other special needs users of the bus route in question. The City Bus is effectively their only mode of Transport and is challenging at the best of times. A conscious effort was made by the Complainant to avoid “Peak Commuter Times” and any distress this might cause to her son.

In no fashion was she anything other than positive and a financial settlement was not her principal priority rather a statement from the Bus Company of the special circumstances allied to passengers at the Hospital Facility Bus Stop. She also felt that the Driver had been unnecessarily rude and had displayed no understanding of her special circumstances. He had, she alleged, pandered to a female in an Orange Hoodie and joked with her about the Complainants.

3:3     Conclusions

3:3:1       From a purely evidential point of view, the CCTV (which did not have an audio track) which was played to the Hearing and when allied to the Oral evidence from the Driver and the Parent /Complainant did not really, in my mind, establish a firm basis for a finding of Discrimination on the grounds stated. It is worth noting that the CCTV was initially saved at the Driver’s request.

The Bus was obviously overcrowded and the lady in the Orange Hoodie, while visible on the CCTV, did not appear to be acting in any obvious Discriminatory fashion. She did appear to speak to the driver but what was said is unknown. The Driver had no real recall of this lady other than she was a passenger on a very crowded bus. Names and contacts for this lady and other passengers were not available.

Discrimination is a serious charge both for the Driver and the Bus Company and needs firm evidence.

A finding of Discrimination on the Grounds claimed of

·       Gender,

·       Family Status

·       Refusal to provide Goods and Services

·       Victimisation

is not supported from the evidence.

Gender did not appear to feature – there was no suggestion that a male passenger was treated more favourably.

Family Status was an unknown to all parties.

A refusal to Provide Goods and Services was not supported. The Driver was not actually refusing a service, simply, he maintained, suggesting that as the Bus was “full” the Complainant could wait for a later Bus. Bus Control had indicated that a further bus was not far behind.

Victimisation implies that the Complainant was in some way selected for special unfavourable treatment. While there was an exchange between the Driver and the Complainant I did not see how it could amount to Victimisation as required in the Equal Status Act,2000.

In summary none of the Grounds listed above appeared to have the actual factual basis necessary to support the Discrimination complaints.

3:3:2     Reasonable Accommodation

The named Respondent in this case is the Bus Company corporately – not the individual Bus Driver.

A finding of Discrimination on the Grounds of a failure to provide for Reasonable Accommodation based on a lack of overall organisational sensitivity at Bus Company Senior Levels to users of the Hospital facility concerned and in this case a Parent and a Special Needs son is a marginal call. However, on consideration of all the evidence I find in the Complainant’s favour.

It is important to state that this is in no manner a negative reflection on the Driver concerned whose evidence I found forthright and direct. There was no Audio feed on the CCTV and on balance I could only judge from his demeanour both on the CCTV and at the Hearing that he was not gratuitously Rude in any discriminatory fashion.

He faced an almost impossible task of managing / safeguarding a crowded Commuter route Bus and at the same time addressing the special needs of Disability passengers. The problem was that the bus was effectively at or near passenger capacity when it came to the stop.

The Complainant had a large Buggy which would have posed safety movement issues on the lower deck of the Bus.

3:3:3       Final Conclusion / Discrimination on Grounds of failure to provide Reasonable Accommodation.

Accordingly, after careful reflection I make a finding of Discrimination against the Bus Company at a Corporate Level on the grounds of Failure to Provide Reasonable Accommodation for the Complainant and fellow Disabled Bus Users at the West Dublin Hospital.

Section 4 (1) of the Equal Status Act 2000 is worth referring to.

Discrimination on ground of disability.

4

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.

It is an Organisational issue/challenge for the Bus Company to have to provide services to a major Disability Hospital and at the same time maintaining an efficient commuter service on the same route.

It was clear from the Complainant’s extensive Oral evidence that the use of the Public Bus was an almost essential part of many Hospital users’ therapy.

All the evidence presented suggested that possibly some more imaginative thought is needed in Bus Company headquarters as to how they can balance these conflicting issues between Commuters and Hospital users.

Equal Status, Reasonable Accommodation, Public Transport Services, Follow up Working Party.