Complainant

Respondent

Parties

Robert  Cantwell

Bus Eireann

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00051433-001

29/06/2022

The complainant submits that he was discriminated against on the grounds of disability and that the respondent failed to provide reasonable accommodation.

The respondent did not attend the hearing of 27/2/2023 and did not advise in advance that they would not attend.  Following receipt of correspondence from the complainant dated 08/03/23 which was copied to the respondent and the respondent’s subsequent response; the Adjudication Officer deemed it appropriate to allocate a second date for hearing to allow the respondent’s submissions to be examined in more detail.  Prior to the second date of hearing on 08/05/2023, the complainant advised in advance that he would not attend.

The complainant submitted that he phoned the respondent on 11/01/22 as the respondent refused the complainant permission to allow his dog to accompany him on the bus.  The complainant spoke to Mr Melia, Services Delivery Manager on at least 11 other occasions requesting permission for the dog to support him between January-April 2022 and the complainant sent the ES1 form to Mr Melia on 22/4/22.  The complainant submitted that the respondent did not reply to his ES1 and when the complainant phoned him about the ES1 he was told that the forms had been sent to Dublin, but the respondent still never replied to the complainant.  The complainant submitted that he sent a copy of the ES1 to the WRC after submitting it to the respondent and received confirmation of receipt of his complaint from the WRC on 29th June 2022.

The evidence of the complainant was that he suffers from a number of disabilities including depression and anxiety which is lifted when he swims in the sea.  The complainant acquired a brain injury at the age of 8 and this has left him with paralysis of his left side.  He gave evidence regarding alcohol dependency but has been sober for many years and that with his dog Osho, who gives him huge support and calms his anxiety, he is trying to live a better life with his many years of sobriety and people who have assisted him.  The complainant submitted that to be able to swim in the sea he requested permission for his dog to accompany him as the dog significantly reduces his social anxiety and depression that he experiences travelling on a bus.  The complainant is in possession of a travel card which gives him an entitlement to be accompanied by a companion.

The complainant said that his dog which supports the complainant has been refused access to the bus and the complainant contacted Mr Melia who was informed of the complainant’s disabilities and difficult life and that he needed to swim for therapy and needed his dog with him.  He said Mr Melia said that his hands were tied.  The complainant said that dogs are allowed on a train and also on the private buses that run in Galway but that the respondent will not allow him to bring his dog on the respondent’s bus service.  It was his evidence that the private bus is too costly for the complainant.  The complainant was advised by the respondent that he needed to have a dog clearly identifiable either by coat or harness to distinguish it as a strong working dog.  He was told by Mr Melia that the dog would have to undergo training or else the complainant would need to acquire a properly trained dog from an approved charity organisation and the cost could be in the region of €3,000.

The complainant said that he asked permission first as he would not wish to bring the dog on the bus without the permission of the respondent.  He was not aware if he could buy a harness from the internet and said he would not want to run the risk of the respondent refusing his dog to accompany him on the bus with a harness bought on the internet.

The complainant provided a photo of his dog and gave evidence that the dog had a very bad start to life like the complainant but that they have a great relationship, and that Osho helps significantly with the complainant’s mental health, and he provided details of his medical physician’s reports that he said supported this. 

This included a letter dated 20/6/2016 from Dr A which stated that the complainant

" has a small dog which is an important companion to him and benefit to his mental health also". I would be grateful if this decision regarding Robert's dog travelling on public transport could be reviewed" (dated 25/01/2022 Dr A),

and another letter dated 24/0/2018 from Social Worker B stated they would

"recommend (the complainant) be allowed to keep his pet as not to do so would have an effect on his health.  This is the recommendation of his community mental health team”

A letter dated20/06/2016 from Dr C stated that

"Robert has been able to live an independent life the courtesy of his assistance dog.  He requires the companionship of this small dog to enable him to travel and function at an acceptable level"

A letter dated 17/01/2019 on behalf of Consultant Psychiatrist D said

"the combination of art therapy and his dog means that Robert does not require psychotropic medication".

The complainant submitted that some of provided letters referenced other issues that, separate to the instant complaint, had arisen regarding his dog but that they reinforced the positive impact of his dog on his disability.

The complainant has a free travel pass, finds it difficult to walk and said that the respondent is preventing him travelling on bus.  He said the respondent made no efforts to accommodate him and made no effort to resolve the matter.

Mr Holmes, a friend of the complainant, gave evidence that he knows the complainant for a while now and introduced the complainant to technology.  Mr Hannon’s evidence was the complainant gets significant comfort from having his pet with him.

The complainant provided additional medical information after the hearing a copy of which was sent to the respondent in line with normal procedures. This letter from Dr E of 08/03/2023 outlined that the complainant

" has a physical disability and mental health complaint and needs his dog to be with him when he travels by bus".

The respondent was given an opportunity to respond, and parties were advised that another hearing date was necessary to

“examine the respondent’s recent submission dated 14th March 2023 as well as any other matters that may arise. The complainant will also be given an opportunity, to respond to the respondent’s recent submission at this hearing if he wishes to do so”. 

The complainant advised on 05/05/2023 that he would not be in attendance at the next date of the hearing.  He submitted that what he said at the hearing in February still stands.

On 26/10/22 the respondent’s accessibility manager Ms E contacted the WRC confirming that they had received an “ESA complaint” from the complainant regarding the “carriage of his dog” and requested the case number.  On 05/12/2022 Mr Melia confirmed that the respondent was happy to receive correspondence by electronic means.  The hearing was scheduled for 27/02/2023, the respondent was advised of same and did not attend and did not advise in advance of the reason for the non-attendance at the hearing. 

On 02/03/2023 Mr Sheridan contacted the WRC and requested “a call regarding the above adjudication.  I understand that it is listed for next Monday”.  The respondent was advised that the hearing had taken place.  Following receipt of correspondence from the complainant received, after the hearing of 27/02/2023, and which in line with normal procedures was copied to the respondent, the respondent replied in writing with a submission.  In the interest of fairness to all parties, a further date for the hearing the purpose of which, as set out in the letter, was to

“examine the respondent’s recent submission dated 14th March 2023 as well as any other matters that may arise.” 

The respondent attended the hearing of 05/05/2023 and the complainant advised in advance that they would not attend.

At the second date of the hearing, the respondent submitted that they had overlooked the previous date for the hearing due to internal miscommunication.  They confirmed that they had received the ES1, had received notification of the complainant, had received the date of the first hearing and that they had failed to contact the WRC to advise that they would not be in attendance due to their mix up.

The respondent submitted that that they operate a range of services around Ireland, including Public Service services operated under contract to the National Transport Authority, commercial intercity services brand and school bus services. In 2022, the company had almost 60 million customer journeys on its scheduled public transport network and it is expected that passenger journeys will be much greater in 2023.

It was submitted that because it operates in a service industry it is committed to be the “most customer centred and sustainable transport companies in Ireland’ with ‘customer first’.  It was accepted that complainant has disabilities and that the complainant’s dog had been refused entry on the bus as he does not have a suitable harness/coat and is not a registered companion/service dog. However, it was submitted that on each occasion, the reason for the refusal has been clearly explained to Mr Cantwell.

The respondent submitted that they aim for equal access to all their services, and this has been achieved by ensuring over 90% of the Bus Éireann fleet is wheelchair accessible, that wheelchair accessibility bus bays are available in all main bus stations, that there are on-vehicle improvements including visual monitor screens which displays passenger information such estimated time of arrival at next stop, along with audio announcements. It was further submitted that all front-line staff have attended disability training.

The respondent submitted that they were one of the first public transport providers to partner with the Just a Minute (JAM) card. This concept is a means by which people with "hidden" disabilities carry with them a card, or image from a mobile app advising service providers of their disability in a simple yet effective manner.   It was also submitted that the respondent regularly meets members of various disability groups on a quarterly basis to explore future development in the area of disabilities. Members include the National Council for the Blind in Ireland (NCBI), Chime, Irish Wheelchair Association (IWA), Fighting Blindness, Irish Guide Dogs Association (IGDA) and the National Disability Authority (NDA).  It was also submitted that the complainant was provided details of the respondent’s policy regarding “conditions of carriage” which sets out that:

‘Guide dogs and assistance dogs, accompanying passengers are permitted to travel on all Bus Éireann services free of charge, and without restriction. Any assistance or service dog must however be registered in advance and must be clearly identifiable either by coat or harness to distinguish it as a working dog, and not a pet.

It was submitted that for an animal to be recognised as a Service/Guide Dog it must be fully trained and registered with one of the following or an international equivalent: Irish Guide Dogs for The Blind, Dogs for The Disabled (Cork), or Autism Assistance Dogs Ireland. An international equivalent is deemed to be certified training from members accredited to Assistance Dogs International (ADI) and that while the details of this policy may not have been sent to the complainant, he was verbally advised that he would need to pay for his dog to be trained or secure a trained dog.   The respondent submitted that Mr Cantwell knew what he has to do and that if he compiled with the respondent’s requirements, the complainant’s dog could accompany the complainant.

The respondent submitted that that working dog jackets are only provided to dogs currently in training directly with these organisation or dogs that have qualified as assistance dogs through their training programmes. It was submitted that these dogs are trained to be able to work effectively in busy bus and rail station and onboard vehicles with multiple customers. These dog jackets are to identify the dog as a working dog and so their customers are aware not to pet or distract the dog from its work.  It was submitted that the refusal to allow Mr Cantwell board a public service bus with a dog cannot be deemed in any way to have breached the Equal Status Act.

Mr Melia gave evidence that a driver had phoned hm and said a passenger had tried to board a bus with a dog and had been refused.  He said that he assumed this to be the complainant as the complainant phoned Mr Melia shortly after and asked could he bring his dog and explained his medical disabilities and the need for the dog to accompany him.  Mr Melia’s evidence was that he explained that the complainant phoned him on numerous occasions throughout January-April when he sent in his ES1.  The complainant had in detail explained his disabilities and the need for his dog to accompany him owing to high levels of anxiety experienced by the complainant as a result of his disabilities.  Mr Melia advised the complainant that there were many drivers, and it would not be possible to give permission for the dog to travel.  The evidence of the witness Mr Melia was that he advised the complainant that he would need the dog to be trained and registered to see if the dog was suitable and that this could cost €3,000.  Mr Melia said he was asked by the complainant if the policy could be changed, and he was told by Mr Melia it could not and there are reasons why dogs have to be properly trained to go on a bus with passengers. 

Mr Melia confirmed that he never advised the complainant of the JAM card and that he did not refer the complainant to the Accessibility Manager of the respondent but that he referred the complainant to the Head of Employee Relations albeit Mr Melia accepted that that he knew that the complainant was not an employee of the respondent.  He confirmed that the harness was a necessity and confirmed that he was not aware that a ‘assistance dog’ harness and/or something similar could be bought off the internet. 

Mr Melia said that if it was the case that anybody could buy a harness then the respondent might need to look at their policy to stop such harnesses and that the respondent did not know what the policy was in other countries with regards to the transport of dogs.  Mr Melia did not know if it might be possible for your dog to accompany you on the train or private bus but not with the respondent.

Mr Sheridan gave evidence confirming the policy of the respondent such that guide dogs and assistance dogs are allowed to travel providing they are registered in advance, and clearly identifiable with coat or harness.  Mr Sheridan was not aware if dogs are allowed travel on the rail service and said that if harnesses were available to buy on the internet, then the respondent may need to amend their policy to prevent such harnesses.

The complainant submitted that the respondent discriminated against him on the grounds of disability by their failure to provide reasonable accommodation by refusing the complainant’s support dog Osho to accompany him on the bus and thereby reduce the anxiety experienced by complainant when doing a bus journey.  The respondent refutes the complaint and submits that if it was required to have a dog accompany the complainant on the bus, the complainant could have utilised the respondent’s conditions of carriage policy including securing the relevant harness/coat and securing an appropriately trained dog or having his own dog undergo the relevant training. 

Section 21 sets out the requirement to notify the respondent in writing of the nature of the allegation and their intention, if not satisfied with the respondent’s response to the allegation, to seek redress pursuant to the Act. This notification must be made within two months of the alleged prohibited conduct.  I note that it was not disputed that the complainant made contact with the respondent on many occasions, from the first incident on 11th January 2022 up to April 2022 and also after his submission of his complaint to the WRC.  The complainant submitted an ES1 form to the respondent on 22/4/22 which Mr Melia confirmed was received.  The complainant did not receive a response from the respondent.  The WRC received the complaint from the complainant on 29/06/2023 by way of a copy of the ES1 form.  I note that the complainant requested at that time manual copies of the WRC complaint form to be forwarded to him.  The complainant also submitted a manual form regarding the first incident of 11/01/2022 and referred to an additional incident of 20/09/2022. 

The WRC form is not a statutory form and having regard to the authority set out by McGovern J in County Louth Vocational Educational Committee v Equality Tribunal [2009 No. 223 J.R.] and taking note that the respondent was on adequate notice of the complaint and noting the respondent was not prejudiced, I am satisfied that the complaints were received by the WRC on 29/06/2022 with receipt of an additional complaint received on 03/10/2022.  I am satisfied that I have, therefore, jurisdiction to hear the complaint.

Section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.

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 to succeed under the Act, the complainant must first establish that there was “prohibited conduct”, in this case alleged discrimination by the Respondent ‘s failure to provide reasonable accommodation. The complainant is required 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”.  The complainant submits that a person without disabilities would have been treated differently and more favourably or persons with a different disability such as a more visible disability would have been treated differently or more favourably and that the respondent failed to provide reasonable accommodation to the complainant and prevented his access to the bus service.

Two EU Directives underpin Ireland’s equal status legislation Council Directive 2000/43/EC (known as the Race Directive) and Council Directive 2004/113/EC (known as the Gender Goods and Services Directive).  However, the Equal Status Act goes beyond these EU directives in prohibiting discrimination, harassment and related behaviour outside of a workplace in connection with provision of goods and services on ten specific grounds including disability.

In the Supreme Court Judgement of Kim Cahill v Minister for Education and Science 2017 IESC 29, it was noted that the Equal Status Act should be treated as being “remedial social legislation” aimed at levelling the playing field and allowing the Court to “adopt a broad generous purposive approach, in order to identify and give effect to the plain intention of the Oireachtas”.

The limits of reasonable accommodation:

“requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J continued: -

The Act is

“intended to be a statute “to promote equality”, to “prohibit types of discrimination”, and to provide mechanisms for the investigation of, and “remedying”, certain acts of discrimination, and other lawful activities.

It is further noted by McMenamin that there should be adoption of

“a broad generous, purposive approach, in order to identify and give effect to the plain intention of the Oireachtas. (See Dodd on Statutory Interpretation in Ireland 2008, Tottel para. 6.52; Bank of Ireland v. Purcell [1989] I.R. 327; Gooden v. St. Otteran’s Hospital [2005] 3 I.R. 617, and High Court judgment in G v. Department of Social Protection [2015] 7 JIC 074, of O’Malley J.).

This approach, however, as pointed out in G v. Department of Social Protection [2015] 7 JIC 074

“is not to elevate any of the provisions into an “all but constitutional level”, nor can the interpretation go beyond the scope of the Act, as set out in the long title. “

McMenamin also notes a UK case of Roads v. Central Trains [2004] EWCA Civ. 1541, Sedley LJ and mentions that the policy of the U.K. Act, was not a

“minimalist policy of simply ensuring that some access is available to the disabled: it is, so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by the rest of the public.” (para. 30).

As outlined by the then House of Lords in Archibald v. Fife Council [2004] UKHL 32 the duty is to “take such steps as it is reasonable, in all the circumstances of the case”.

In the matter of Kim Cahill V Department of Education and Science, 2017 IESC 29, McMenamin J stated that,

“The Circuit Court and High Court dealt with s.4(1) as a question of “reasonable accommodation”. That is not the test set by the words of the section. In fact, the section requires a respondent to do “all that is reasonable” to accommodate the needs of a person with a disability by providing special treatment or facilities, with the proviso that, if without such treatment or facilities, it would be impossible or unduly difficult for the person to avail himself or herself of the service.”

McMenamin J went on to state that,

“The purely legal question, however, is, how should the term “all that is reasonable” be interpreted? In general, the term ‘reasonable’ here has two aspects. First, it must contain a ‘substantial’, or proportional, component sometimes, as in s.4(2), involving consideration of the cost element…but, second, there must be a procedural aspect where the focus should be on the engagement between the process provider, and the recipient. These are objective tests.”

It was not disputed that the complainant has mental health disabilities, and that the respondent was aware of these.  The respondent also confirmed that they were aware that the complainant requested his dog Osho to accompany him as the complainant likes to swim in the sea which greatly improves his mental health and in order to get to the sea, he uses the bus and to use the bus he requires his dog to accompany him as the dog calms anxiety experienced travelling on the bus.

I note also the letters submitted by the complainant from mostly various medical physicians.  While some of the letter make mention of the dog’s barking if left at home, I find the medical correspondence in the main, persuasive in supporting the complainant’s credible direct evidence that the mental health disability of the complainant is greatly reduced with the presence of the dog Osho.

"Robert has a small dog which is an important companion to him and benefit to his mental health also". I would be grateful if this decision regarding Robert's dog travelling on public transport could be reviewed" (dated 25/01/2022 Dr A),

and I "recommend he be allowed to keep his pet as not to do so would have an effect on his health" (dated 24/0/2018 Social Worker B)

"Robert has been able to live an independent life the courtesy of his assistance dog.  He requires the companionship of this small dog to enable him to travel and function at an acceptable level" (20/06/2016 Dr C)

"the combination of art therapy and his dog means that Robert does not require psychotropic medication" (17/01/2019 Consultant D)

Finally, the letter issued after the first date of the hearing reaffirms that the complainant “has a physical disability and mental health complaint and needs his dog to be with him when he travels by bus" (08/03/2023 Dr E)

The respondent submits that access is given to customers to travel with their dogs subject to the respondent’s policy and the details which were copied to the complainant include:

“Guide dogs and assistance dogs accompanying passengers are permitted to travel on all bus Eireann services free of charge and without restrictions.  An assistance dog must be clearly identifiable either by coat or harness to distinguish it as a strong working dog and not a pet.  Apart from the foregoing exceptions, dogs, cats or any other animals or live fowl of any description WILL NOT be carried.

While a copy of an additional policy was not readily made available to the complainant, the complainant was verbally advised that to secure carriage of his dog he would be required to secure the harness from one of the respondent’s recognised disability groups and that it could cost him €3,000 if he was to successfully have his dog trained or secure a different dog in order to be considered eligible for the harness.    I also note that despite the respondent’s significant submissions regarding their disability friendly policies, I find it somewhat unusual that they saw it fit to refer the complainant to the Employee Relations Manager Mr F and not to the Accessibility Manager Ms G. 

The respondent’s submission on the day was that they require dogs to be able to handle travelling on a bus and not be distressed or cause distress to others.  They were unable to respond to whether the respondent had given consideration to how such concerns could be managed in the way that other organisations have considered this.  They submitted that they engage with disability organisations on a regular basis, albeit the emphasis seemed to be with visible disability organisations but did not refer the complainant to engage with their own Accessibility Manager regarding reasonable accommodation for the complainant’s disabilities.  It would appear from the evidence and submissions of the respondent that the policy is in place and therein ends the matter.  There were numerous occasions where the respondent could have engaged with the complainant to ascertain if they could make reasonable accommodation, but they did not.

Taking into consideration all the submissions and evidence, I find that the complainant has established a prima facie case of discrimination with regards to reasonable accommodation.  The respondent did not fully engage with the complainant to do all that is reasonable to accommodate the complainant with a serious mental health disability by providing special treatment or facilities and that without which it was unduly difficult for the complainant to avail of the bus service. 

It would appear that the respondent’s policy and the actions of the respondent mostly focussed on ‘visible’ disabilities with no satisfactory exploration or explanation given to the complainant.  Nothing was submitted that might suggest reasonable accommodation could give rise to costs and the respondent’s submission of risk to other passengers was not supported by any empirical data or suggestion that due consideration had in fact even been given. It would appear there was no “focus on engagement by the process provider, and the recipient” as set out in Kim Cahill v Minister for Education and Science 2017 IESC 29. F

or completeness it may be that if the respondent had given appropriate consideration to reasonable accommodation; the respondent may have drawn a conclusion that it was not possible for the dog to accompany the complainant.  However, owing to their failure to give any such consideration to providing reasonable accommodation and their failure to focus on adequately engaging with the complainant I find that the respondent engaged in a prohibited act and discriminated against the complainant by their failure to provide reasonable accommodation.

In assessing compensatory redress, I am mindful of the effect this discrimination had on the Complainant as he recounted his evidence before me.  As the Complainant has established that the Respondent has engaged in prohibited conduct and is entitled to redress, and I therefore order compensation for the effects of the prohibited conduct of failing to provide reasonable accommodation for a person with a disability in the amount of €1,500.00.

I further order that the respondent review as a matter of urgency their policies regarding provision of reasonable accommodation for those with disabilities – both visible and invisible – with relevant bodies to ensure that as provided for within the Act inter alia that the respondent does 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”. 

I find that the respondent engaged in a prohibited act and discriminated against the complainant by their failure to provide reasonable accommodation.

In assessing compensatory redress, I am mindful of the effect this discrimination had on the Complainant as he recounted his evidence before me.  As the Complainant has established that the Respondent has engaged in prohibited conduct and is entitled to redress, and I therefore order compensation for the effects of the prohibited conduct of failing to provide reasonable accommodation for a person with a disability in the amount of €1,500.00.

I further order that the respondent review as a matter of urgency their policies regarding provision of reasonable accommodation for those with disabilities – both visible and invisible – with relevant bodies to ensure that as provided for within the Act inter alia that the respondent does 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”. 

Reasonable accommodation, dog, mental health, equal status