Complainant

Respondent

Parties

Ashley Moran

Bus Eireann - Irish Bus

Representatives

 Self-Represented

John Sheridan Bus Eireann

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049758-001

15/04/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

It is the Complainant’s claim that he was subjected to discrimination on the ground of disability by the Respondent on two occasions; 24 February 2022 and 4 March 2022 for failure to reasonably accommodate him.

The Complaint Form was received by the Workplace Relations Commission on 15 April 2022.  The ES1 Form sent to the Respondent was dated 16 March 2022.

The Complainant swore an affirmation. There were two witnesses who gave evidence on behalf of Respondent, the Bus Driver and the Operations Manager who both swore an affirmation.  Both sides were given an opportunity to cross examine each other.

The Complainant and Respondent filed submissions in advance of the hearing. While the Complainant’s submissions were forwarded to the Respondent, they went to a general email address and the representative did not have them in advance of the hearing. They were provided to the Respondent and time offered to review them, but this was declined on two occasions.  CCTV was shown for the first time at the hearing. The Complainant was given time to review it in advance of it being put into evidence. The parties confirmed they were happy to proceed once they had the opportunity to first view the CCTV.

It is important to note from the outset this is a claim as against the Respondent not the security firm who was not a party to this claim nor were they on notice.

It was the Complainant’s case that on 24 February 2022 he entered the bus after work without a mask. It was his evidence that he had a letter from his doctor stating he was exempt from wearing a mask due to a medical condition. When asked by the Bus Driver to wear a mask who became aggressive with him. The Complainant stated he told the Bus Driver he was except and had a medical note on his phone but was advised by the Bus Driver that he did accept it. It was the Complainant’s evidence that he had several copies printed out and a copy on his phone.

The Complainant proceeded to sit on the bus for over an hour while the Bus Driver told him he was calling the Gardaí. However, instead but eventually an unidentified man in a black coat arrived at approximately 6.15pm. The Complainant described feeling “distressed and alarmed” that the Bus Driver would have called a “private individual”. He described having to resort to filming during this period to record that he remained calm and peaceful. The Complainant gave evidence that he felt “under threat” and left the bus.

The second incident complained of by the Complainant occurred on 4 March 2022 when the same Bus Driver drove past him at the bus stop. At this time, it was the Complainant’s evidence that the Bus Driver closed the door on him when he attempted to get on the bus. As he walked up the steps of the bus, the Bus Driver stood up from his seat and told him to get off the bus. Upon taking out his phone to record the Bus Driver, it was the Complainant’s evidence that the Driver swung a punch at him and but for his quick reaction, he did not connect with the Complainant. He described laughing at the Driver as he told him he had a ticket. The Complainant went on to describe feeling “stupid” and threatened by the Driver as he was standing over him who was a big, tall man.

The Complainant gave evidence that he sent several emails to the Respondent following each of the incidents. He accepted he received an apology on 7 April 2022 from the Respondent for “the distressencountered when travelling” on 24 February 2022 and advising that an internal investigation had commenced. It was the Complainant’s submission that despite raising his complaint that the Respondent has failed to rebut his claims. The CCTV was not presented until the hearing despite it being available immediately after the complaint was made. It was assumed that the Respondent would have checked the CCTV before responding to him on 7 April 2022.

In respect of the video recording the Complainant explained that he provided a copy to the Gardaí but he no longer had the phone on which he recorded the incident on. The Complainant referred in his evidence to print outs of where he says he uploaded the video to the Gardaí.

Under cross examination the Complainant was asked whether there was a criminal investigation into the incident to which he responded there was not because he did not make a statement for personal reasons.

The Complainant was asked why he felt the need to film the incidents to which he responded that he had been “hassled” for the previous 2 years regarding wearing a mask. He said he felt threatened by the security guard. When asked about the letter from his GP and whether he showed it to the Bus Driver, he replied that the Driver immediately became aggressive and asked where his mask was?

The CCTV was put to the Complainant and in particular the interaction between himself and the Driver did not look confrontational. It was the Complainant’s evidence that it was the Driver’s tone and language was aggressive, his words were not professional. It was put to him his interaction with the Driver was short and he walked past him, choosing to ignore him. It was put to the Complainant that he had his mind made up before getting on the bus.  It was put to him that asking where his mask was a reasonable question.

As regards the second incident it was put to the Complainant that the Bus Driver did not close the door on him, but it was already closing when he was getting on the bus. The Complainant replied that it was half open. There was a series of questions around the allegation the Driver throw a punch and whether it was before or after the Complainant started laughing at the Driver.

The Bus Driver detailed on 24 February 2022 he was told by the Complainant that he was immunocompromised to which he replied so was he and on that basis, it was only fair that he wore a mask. The Complainant did to respond and just walked past him. He did not have any reason to discriminate against the Complainant, he was just following company and government policy.

In relation to the second incident, the Bus Driver did accept he saw the Complainant, but he did not call the bus as it was a request stop. At the last minute he did realise that two female passengers wanted to get off which was the reason he stop beyond the bus stop. He described the Complainant forcing his way onto the bus and immediately started filming him.  The Bus Driver accepted he “went for” the Complainant’s phone which he should not have but he did not attempt to punch him. He described feeling threatened and shaken by the Complainant’s behaviour. He was of the view the Complainant was goading him and “trying to get a rise out of him”.

He gave evidence that he has worked for 23 years with the Respondent.

Upon cross examination he was asked why he threw a punch with the Bus Driver denying this. The Driver replied saying he was filming him illegally, forced his way onto the bus and had every right to defend himself. He continued that he felt the Complainant was going to threaten him after the last incident, the Complainant could have had a knife. The Driver described the Complainant as forcing his way onto the bus and was aggressive.

The Driver was asked what height he was and replied 5 foot 10 inches. It was put to him that the Complainant was smaller and slimmer than him.   

There was a dispute as to whether the bus door was closed on the Complainant by the Bus Driver or the Complainant tried to force the door open as was the evidence of the Bus Driver.

Upon inquiry the Bus Driver was asked whether he requested the medical certificate from the Complainant, to which he replied that most people presented it to him without question. He was asked if he looked at the phone when offered by the Complainant. It was the Respondent’s evidence that the Complainant offered the medical report 5- 10 minutes after he boarded the bus and replied that he needed to see it (in hardcopy) and not on the phone. At this stage he had called for assistance from the central control centre and the Gardaí. He was asked if he had produced his letter upon entry or put on his mask would he have been allowed on the bus to which the Bus Driver confirmed he would.

Finally, it was submitted by the Respondent carried 7 million of a total of 9 million passengers with free travel passes who are available to those over 65 years old or those with a disability. Both of these categories of passengers would have been considered as vulnerable during the pandemic and therefore, had a duty to these passengers to comply with Covid -19 restrictions. It was further outlined that 95% of its fleet are wheelchair friendly and the Respondent was the first public service to recognise the JAM card.  

Section 3 of the Equal Status Act 2000 defines discrimination as:

3.— (1) 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,

Or                                                 

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Protected Grounds

“(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”)”

Special Treatment is defined in Section 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.

(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.”

In order for a case to succeed under the Act, there is a clear onus on the Complainant to first establish that there was “prohibited conduct” in this case alleged discrimination by the Respondent. It is necessary for the Complainant to establish by way of comparator, named or hypothetically, that the Respondent treated him “less favourably than another person is, has been or would be treated”.

There was no dispute and therefore, accepted that the Respondent is providing a service within the meaning of the Acts.

No comparator was expressly named but having carefully considered the Complainant’s evidence it is clear that he did give implied evidence that he was treated less favourably than other passengers. Furthermore, this was not challenged by the Respondent.

For the avoidance of doubt where the actual recording referred to by the Complainant was not produced at the hearing it cannot be accepted in evidence and therefore, no reliance was put on it.

I will come back to the question of whether the Respondent’s action amount to prohibited conduct later.

It is necessary to consider SI 296/2020 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Face Coverings in Certain Premises and Businesses) Regulations 2020 was introduced to assist in the prevention of the spread of Covid-19 in the interest of public health. Under Regulation 5 (a) of S.I. 296/2020 provides for specific exclusions: -

“5. Without prejudice to the generality of what constitutes reasonable excuse for the purposes of Regulation 4(1), a person has reasonable excuse if -

(a) the person cannot put on, wear or remove a face covering -

(i) because of any physical or mental illness, impairment or disability, or

(ii) without severe distress”

There was no dispute as to the Complainant’s disability nor this evidence that he had reasonable cause to be except from wearing a face covering. It was also agreed between the parties that the Complainant was asked by the Bus Driver to wear a “mask” with the Respondent’s evidence going further by stating the Complainant was offered a mask by the Bus Driver and asked why he does not wear a visor.

There is a considerable body of decisions on this issue with the Adjudication Officer in A Customer v A Retail Shop ADJ-00033208 noting an important point on the context of whether discrimination occurred in the request to wear a face mask:-

“Just because someone with a disability may be entitled to assert a defence of reasonable excuse if they are charged with a failure to wear a mask, does not mean that, a retailer’s request that they wear a mask is evidence that they have been discriminated against or that there has been a failure to make reasonable accommodation”.

This decision follows Regulation 4 of S.I. 296/2020 which requires a “responsible person” that being the person in charge to:-

“(4) A responsible person shall take reasonable steps to engage with persons entering or in the relevant premises to inform them of the requirements of paragraph (1) and to promote compliance with those requirements.”

The next consideration is to decide on whether the Respondent aware of the Complainant’s disability at the time of their interaction.

From an objective review of the evidence, it is accepted that the Respondent was unaware that the Complainant had a disability. I find that the Bus Driver was not told of the Complainant’s disability when he entered the bus. From the CCTV footage, the interaction between the two men was extremely brief. It was both parties’ evidence that the medical report was not produced upon entry of the bus on 24 February 2022. Simply having the medical report on the phone or in his backpack is not practical. It is entirely reasonable that where there was a mandatory requirement to wear a face covering on public transport in 2022 that an individual who was in possession of a medical note detailing a reasonable cause for not wearing a mask, would have it ready to be produced upon entry to the bus without being asked. In the Complainant’s own evidence, he had persistent issues around the requirement to wearing a mask for the previous two years. This is all the more reason why he ought to have had the medical report ready for inspection by the Bus Driver along with his ticket. I do not accept the Respondent’s evidence that it should have been a printout.

While it is entirely understandable that during this time it was frustrating for those individuals who had a reasonable excuse not to wear a face covering due to their disability. Equally, for front line workers it was an equally stressful time. However, it does not entitle anyone to engage abusive behaviour particularly where workers were simply trying to comply with the Regulations in placed at the time

This is particularly relevant where the majority of passengers availing of the Respondent’s services fell into the vulnerable category including the Bus Driver himself. There was a burden placed on the Driver by these Regulations to be a “responsible person” to ensure compliance with the law. I also find it was entirely reasonable for the Driver to seek assistance from security rather than engage further with the Complainant.

Consequently, I find that the Complainant has not established a prima facia case of discrimination on the grounds of his disability nor did the Respondent engage in prohibited conduct on 24 February 2022. The actions of the Respondent were objectively justified on the grounds of public health.

As regards the second incident, I find entirely implausible that the Complainant felt threatened by the Bus Driver. From the CCTV it is clear that the Complainant pushed his way onto the bus. By his own evidence which is corroborated by the CCTV he had the phone in his hand and started filming the Driver while laughing at him. This is not behaviour consisted with an individual who was fearful of another. I accept in the evidence of the Bus Driver that the Complainant was taunting him during this interaction. This is behaviour is disturbing in the context of a Bus Driver who was tasked with transporting people in rush hour traffic in a safe manner to be met with such intimidating behaviour.

As regards the allegation that the Driver attempted to punch the Complainant, I find that the Complainant misinterpreted the Driver’s actions.  Again, I accept the credible evidence of the Driver particularly considering his explanation that he was attempted to remove the camera which the Complainant admitted that he was filming him. This is again corroborated by the CCTV footage. While it is unacceptable that a Driver would engage in such behaviour this not a matter for this forum but a separate matter for the employer.

Therefore, I find the refusal of the Respondent to allow the Complainant travel on the bus on 3 March 2022 was due to his abusive behaviour towards the Bus Driver. The Complainant has not established a prima facia case of discrimination on the grounds of his disability on this date.

I find the complaint is not well founded as outlined above.

Equal Status – Face Covering – disability - reasonable accommodation