Complainant

Respondent

Anonymised Parties

A Member of the Public

A Public Transport Company

Representatives

Noel O'Hanrahan O'Hanrahan Lally Solicitors

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-00021602-001

06/09/2018

The Complainant lodged a Complaint Form with the WRC on 6 September 2018, under the Equal Status Act, 2000. An initial hearing of the case took place on 29 August 2019. Due to the absence of a key witness this hearing was adjourned. Another hearing was scheduled for 19 March 2020, however due to restrictions related to the Covid-19 pandemic the scheduled hearing was postponed.   A hearing of the case did take place on 28 September 2020.

The Respondent is a public transport company and the Complainant is a member of the public who utilises the service provided by the Respondent. The Complainant claims discrimination and harassment on the grounds of his sexual orientation and his disability. The Respondent denies the claims.

Considering the circumstances surrounding this case I have decided to preserve the anonymity of the Complainant and the bus driver against whom the allegations have been made.

The Complainant, a gay man, submits that he was discriminated against by the Respondent, its servants or agents, on the grounds of his sexual orientation and disability on several occasions between April 2017 and June 2018, contrary to s.3 of the Equal Status Acts 2000-2015 (“the Acts”). The Complainant also claims that the treatment of him by the Respondent amounted to harassment contrary to s.11 of the Acts. The Complainant claims that the Respondent, in providing services, has failed to meet its obligations under the Acts.

The Complainant submits that there were several incidents with a particular bus driver, Mr X, over the period in question.

The Complainant submits that in April or May 2017, he boarded a public bus operated by the Respondent. He paid his fare and walked to the back of the bus. The driver, Mr X, shouted to the bus that the Complainant had not paid the correct fare. The Complainant replied to him, stating that he did not know that he had not paid the correct fare and offered to pay the difference. The driver refused this offer, forced the Complainant to disembark from the bus and said the words “go on you queer,” and called the Complainant a “schizo”. In direct evidence at the hearing the Complainant explained that incident was very distressing and embarrassing. He subsequently rang the Respondent and lodged a complaint.

On 4 December 2017, the Complainant attempted to board a public bus at Connolly Station and was refused entry by the driver, Mr X, who said to him “I had an issue with you before so don’t let it happen again”. Mr X told the Complainant that he would contact the Gardai about him and called him a “faggot” when he was disembarking the bus. In direct evidence the Complainant stated that Mr X had seen him in a group of people, had pointed his finger at him saying, “you’re not getting o””. The driver closed the doors in the Complainant’s face causing the Complainant much embarrassment. The Complainant lodged a written complaint on foot of this incident.

On 14 February 2018, the Complainant attempted to board a public bus at Gardiner Street when he was refused entry by the driver, Mr X, who said the Complainant had lodged complaints against him. Mr X refused to drive the bus while the Complainant was on it and all the passengers had to disembark. In direct evidence the Complainant stated that he was considerably stressed by this incident. He lodged a written complaint on foot of this incident.

The Complainant submits that on 19 February 2018, he was waiting at a certain bus stop when a bus when Mr X drove by him without stopping to let the Complainant board. Later that day, the Complainant asked Mr X why he had not stopped for him; Mr X closed the door in his face.

On 3 May 2018, the Complainant attempted to board a public bus which Mr X was driving but when he did so Mr X closed the doors on him, laughed and drove away.

On 7 June 2018, the Complainant boarded a bus and paid his fare. Mr X stopped the bus and refused to drive any further.   Mr X told the Complainant that he did not have to allow him to board the bus. Mr X announced over the intercom on the bus, “[name of Complainant] there’s people doing their Leaving Cert., you’re holding them up.” All the passengers were forced to disembark.   An Garda Siochana were called.   In direct evidence the Complainant stated that this was a distressing incident particularly as the children doing the Leaving Cert. were getting very upset. The Complainant submitted another complaint to the Respondent after this incident. The Complainant stated that the conduct of the Respondent as a whole was poor in that they had failed to do anything despite his complaints to them.

The Complainant stated that a meeting did take place with a manager from the Respondent company, at the Complainant’s father’s request, to try and sort things out.   At this meeting the Complainant states that he was assured that he would never see Mr X again but only a week later he was on the Complainant’s route again.

In cross examination, the Complainant stated that he had been issued with a disability card after the first couple of incidents, but he was unsure on what date it had been issued. When asked by the Respondent’s representative how Mr X could have known the Complainant had a disability the Complainant responded by stating that he had told Mr X that he suffered from anxiety. The Complainant also that he did not know if Mr X knew he had a disability and that he could not say categorically that he had ever shown his disability card to him.

The Complainant submits that he was discriminated against by the Respondent in the Respondent’s refusal to allow the Complainant to board the bus. The Complainant puts forward that It is clear that this refusal was based on the grounds of the Complainant’s sexual orientation and disability in circumstances where Mr X, on various occasions, refused the Complainant access, forced the Complainant to disembark from the bus and said the words, “go on you queer”, and called the Complainant a “schizo” and a “faggot”. These words are plainly explicitly or necessarily linked to the discriminatory grounds of the Complainant’s sexual orientation and disability. The Complainant submits that he was treated less favourably than other service users on the grounds of his sexual orientation and disability.

The Complainant submits that he was harassed contrary to s.11 of the acts, in that the distressing and unwanted conduct to which he was subjected had the purpose or effect of violating his dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for him. The Complainant maintains that he was clearly subjected to grievous harassment in the course of his attempt to use the Respondent’s service.

The Complainant submits that it is clear he was subjected to a hostile, degrading or offensive environment and was alone singled out for such treatment on the grounds of his sexual orientation and disability in circumstances where Mr X, on various occasions, refused the Complainant access, forced the Complainant to disembark the bus and said the words “go on you queer”, and called the Complainant a “schizo” and a “faggot”. These words are plainly explicitly or necessarily linked to discriminatory grounds of the Complainant’s sexual orientation and disability.

The Complainant submits that without doubt this humiliating treatment, consisting of acts, gestures and requests, was unwanted, was related to the discriminatory grounds of the Complainant’s sexual orientation and disability and had the effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating and offensive environment for him.

The Complainant submits that for the reasons set out above that he has established a prima facie case of harassment and discrimination on the grounds of his sexual orientation and disability by the Respondent, its servants or agents. Accordingly, the Respondent must bear the onus of proving that it did not discriminate against or harass the Complainant.

In answers to questions the Respondent stated that the incidents complained of by the Complainant were investigated but it was deemed that no disciplinary action should be taken against Mr X. Regarding moving Mr X in a timelier manner to prevent an escalation of conflict with the Complainant, the Respondent stated that it is unusual to move drivers off routes they are “marked in on” (hold a senior position on).

In conclusion, the Complainant submits that he was treated less favourably than other users on the grounds of his sexual orientation and his disability and that the truthfulness of his evidence is backed up by his written complaints.   Although there was an investigation the Respondent failed to do anything about the situation. That a prima facie case has been proven and nothing has been brought forward by the Respondent to dispute the evidence of the Complainant.

It should be noted that the Respondent’s employee, the bus driver, Mr X, did not attend the Hearing.

The Respondent submits that their employee, Mr X, denies at any time using such terms as “queer”, “schizo” and “faggot” against the Complainant. However, Mr X does say that relations between he and the Complainant became confrontational.

The Respondent submits that in November or December 2017, Mr X became aware that the Complainant, who was a regular passenger on a specific route, was repeatedly paying the wrong fare for the journeys he was taking, i.e., he was paying the fares for shorter journeys than he was completing. Part of a driver’s job is revenue protection and Mr X challenged the Complainant about his not paying the correct fare.

The dispute about fares escalated quickly and there were several arguments between Mr X and the Complainant. Sometime prior to Christmas 2017, the Complainant began to photograph and film Mr X and began to post commentary in relation to him in which he described him as “homophobic” and as “a bully”. Mr X became aware of this commentary when put on notice of it by colleagues. The Complainant is very active on social media and had a following of approximately 75,000 on his then Instagram account. One of the videos posted on-line shows Mr X finishing his shift on Talbot Street to hand over to another driver whilst the Complainant, standing on the pavement, shouts commentary about Mr X to passers-by and intending passengers waiting at the terminus.

The Respondent submits that other incidents occurred outside work hours. Mr X found the whole experience unnerving and it not only affected his health but began to affect his father’s health as well.

The Respondent does not deny that on at least one occasion Mr X did not stop the bus when he saw the Complainant at the bus stop. In turn, the Complainant sometimes waited for another bus rather than get on Mr X’s bus. The most recent incident took place in June 2018, about which Mr X made a complaint to management.

The Respondent submits that Mr X made a formal complaint about the Complainant’s behaviour to the Gardai and is awaiting the result of this complaint.   Mr X was out sick from roughly the date of the above incident for three months.

The Respondent called the Operations Manager of Mr X’s depot to give evidence. The Operations Manager stated that Mr X felt very harassed by the Complainant and ended up going out sick for a period due to the stress related to the ongoing problems between himself and the Complainant. The witness stated that when Mr X returned from sick leave, he requested a different rout and this request was granted; since October 2018 he has been on a different route.

In cross examination, the Operations Manager stated that whereas not all complaints made by the public are investigated colleagues had replied to the Complainant. The witness also agreed that it was not procedure to shout down buses. There was not, according to the witness, any evidence to support the contention that Mr X was aware of the Complainant’s disability.

The Respondent Company’s Access Officer also gave evidence at the hearing. She explained that all drivers get Diversity training and that the organisation has a very diverse workforce. The Respondent has been recognised and won awards for its Integration and Diversity practices. In response questions put to her during cross examination the Access Officer stated that Mr X’s manager, having spoken with Mr X, decided he did not need to undergo any refresher training in the area.

The Respondent submits that it is clear their driver, Mr X, at times showed poor customer relations skills and made misjudgements but what happened between him and the Complainant was an argument that escalated rapidly. Mr X is an experienced driver with no other complaints against him. What happened in this case is not an example of discrimination on the grounds of sexual orientation or disability but instead a situation where a driver challenged a passenger about whether he was paying the correct fare which provoked a grossly exaggerated reaction of outrage. Once the argument escalated it was a very uneven dispute, with Mr X powerless to take any action to prevent the social media commentary made about him by the Complainant.

In concluding, the Respondent put forward that this was not a case of pure discrimination, that Mr X felt threatened by being videoed and that he was not aware of the Complainant’s disability. This was, according to the Respondent, an unfortunate series of events, where both sides were at fault, and although not justifying what Mr X did, it was a dispute and the on-line commentary, and the videoing of the driver was considered as threatening behaviour by Mr X.

The Relevant Law

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

Service

The Equal Status Act defines ‘service’ as ‘a service or facility of any nature which is available to the public generally or a section of the public’ and includes ‘a professional or trade service’. Having considered the evidence and from personal knowledge, I find that the service provided by the Respondent is a service within the ambit of the Equal Status Act.

In any such 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.

Burden of Proof

Section 38 A (1) states:

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.

 (3) Where, in any proceedings arising from a reference of a matter by the Authority to the [ Director of the Workplace Relations Commission] under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the Respondent to prove the contrary

In this case I am obliged to establish if the Respondent discriminated against the Complainant on grounds of his sexual orientation and disability contrary to Sections 3(1), 3(2)(d) and (g) and 5(1) of the Equal Status Act, 2000, as amended, in the way he was refused entry to buses on several occasions during the period in question.

The Complainant is required to establish facts that may give rise to an inference of discrimination (the ‘prima facie’ case) and the burden of proof then shifts to the respondent to disprove the inference of discrimination.

Discrimination

Section 3(1) of the Equal Status Acts 2000-2016 states 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 grounds listed in sub- section (2)’.

Section 3(2)(d) of the Act of 2000 as amended specifies the sexual orientation ground as one of the grounds covered by the Act, section 3(2)(g) specifies disability as one of the grounds covered by the Act.

Section 5(1) of the acts states” 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.”

Harassment

Section 11 of the Act states:

Sexual and other harassment.

11.—(1) A person shall not sexually harass or harass (within the meaning of subsection (4) or (5)) another person (“the victim”) where the victim—

( a) avails or seeks to avail himself or herself of any service provided by the person or purchases or seeks to purchase any goods being disposed of by the person,

( b) is the proposed or actual recipient from the person of any premises or of any accommodation or services or amenities related to accommodation, or

( c) is a student at, has applied for admission to or avails or seeks to avail himself or herself of any service offered by, any educational establishment (within the meaning of section 7 ) at which the person is in a position of authority.

(2) A person (“the responsible person”) who is responsible for the operation of any place that is an educational establishment or at which goods, services or accommodation facilities are offered to the public shall not permit another person who has a right to be present in or to avail himself or herself of any facilities, goods or services provided at that place, to suffer sexual harassment or harassment at that place.

(3) It shall be a defence for the responsible person to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in subsection (2) or of a category of persons of which that other person is a member.

(4) A person ’ s rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person.

(5) ( a ) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

( b ) Without prejudice to the generality of paragraph (a) , such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. 

Section 11 prohibits the harassment of those accessing a service. It provides that the ‘responsible person’ shall not permit another person to suffer harassment. It is a defence for the responsible person to show that they took ‘such steps as are reasonably practicable’ to prevent harassment. In this case, the ‘responsible person’ is the Respondent. Harassment is defined as ‘unwanted conduct’, being conduct that has ‘the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.’

Vicarious liability

Vicarious liability is a legal concept where one person is held to be legally liable for the wrong of another. Section 42 of the Equal Status Act provides ‘Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.’ Section 42 also provides a defence for an employer: ‘the employer took such steps as were reasonably practicable to prevent the employee (a) from doing that act, or (b) from doing during his or her employment acts of that description.’

Application to the case

The role bus drivers play in our society is an important one and one which can at times be difficult. Bus drivers have been the subject of unwarranted abuse and regularly must deal with unruly passengers. Members of the public rely on drivers to ensure their safety and to get them to their destinations. In the overall scheme of things there is appreciation and respect from passengers for bus drivers. However, just as bus drivers expect to be treated with respect so must they treat their passengers with respect. In this case this respect was sadly lacking.

I note the Respondent accepts, notwithstanding its claim that there was some provocation, that matters were not dealt with as they should have been by their driver. At the hearing the Complainant gave a cogent account of his interactions with the driver. His evidence was supported by the contemporaneous complaints he submitted to the Respondent. I did not have the benefit of the driver’s direct evidence.   I accept that the Respondent spoke to the driver during and after the period in question and relayed his points of view to me. I must, however, accept the Complainant’s cogent account, which is supported by contemporaneous documents and not contradicted.

It follows that the interactions with the driver took place as described by the Complainant. I therefore, find that he was verbally abused and described in what the driver intended to be insulting terms, linked to the Complainant’s sexual orientation. I also find that he was refused service on several occasions when the bus driver refused him access to his bus or drove by the Complainant denying him access to the bus.

From the evidence adduced, particularly in the terms used by the driver, I am satisfied that the alleged discrimination and harassment was because of the Complainant’s sexual orientation. I am not satisfied that the driver was at any time aware of the Complainant’s disability and therefore I cannot find on this ground.

I find that the Complainant has established a prima facie case of discrimination and harassment on the ground of his sexual orientation, which has not been rebutted by the Respondent. I find these acts violated the Complainant’s dignity and created a degrading and humiliating environment for him.

I find the Respondent is vicariously liable as these acts were committed by its employee during the ordinary course of his employment. Although the Respondent did attempt to resolve the conflict between the driver and the Complainant it was too little, too late. If the Respondent had taken remedial action earlier, perhaps in arranging mediation between the two antagonists, it may have led to better outcomes for both the Complainant and the driver.

I find therefore that there was a contravention of the Equal Status Act in that the Complainant was subjected to discrimination and harassment on the sexual orientation ground. The Complainant outlined the impact this episode has had on him and the stress it has caused him. An award of redress is warranted. Taking all the factors into account, in particular the protracted nature of the difficulties encountered, and the stress suffered by the Complainant, I award redress of €7,500.

I decide that the Complainant has established a prima facie case of discrimination.   I decide the Complainant was subjected to harassment on the sexual orientation ground in contravention of the Equal Status Act. I decide that the Respondent shall pay to the Complainant €7,500 as redress for this contravention.

Service provider, burden of proof, harassment, discrimination, redress.