Complainant

Respondent

Parties

Paul  Phelan

Last Bus Limited TA Dublin Coach  

Complainant

Respondent

Representatives

  The complainant’s mother

 Dawson O'Toole Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047689-001

15/12/2021

The complainant has submitted a complaint that the respondent discriminated against him on the basis of his disability and contrary to the provisions of the Equal Status Acts 2000-2015 ( The Act).

The complainant is on the autistic spectrum.

The acts of discrimination occurred on a number of dates including the 15,21 and 28 October 2021 when as a passenger with a disability and in possession of a free a travel card, he experienced difficulty in accessing the respondent’s bus.

He submitted his complaint to the WRC on 15/12/2021.

The respondent argues that the complaint should be dismissed as the complaint is lodged against Dublin Coach. There is no such legal entity as Dublin Coach. Dublin Coach is not a person as defined by Section 2(1) of the Equal Status Act, 2000 and therefore it is not a respondent as defined by Section 20 of the said Act. Rather it is a business name registered in the name of Last Bus Limited. Therefore, the complainant has failed to bring his complaint against the correct respondent and his complaint should be dismissed. The complainant should have checked the CRO.

The respondent rejects the complainant’s request to amend the name of the respondent to Last Bus Limited.

The complainant requests that I accept his request to amend the name of the company to reflect its proper title.

The respondent’s website names the provider as Dublin Coach. Copies of emails passing between the respondent and the complainant and submitted in evidence bore the name Dublin Coach.

I must first decide whether the respondent named on the complaint referral form can be changed to reflect the correct title of the respondent as requested by the complainant.

In the instant complaint the business name was used rather than that of a natural person or legal entity who trades under that business name. Relevant to the complainant’s mistaken use of the respondent’s business name is that the Rules of the Superior Courts allow for proceedings to be initiated against a firm in its business name. Order 14, Rule 11 of RSC, provides as follows: -

 “Any person carrying on business within the jurisdiction in a name or style other than his own name, may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.” 

In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.

Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.

In County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

I note that there is no dispute about whether the complaint is properly before the WRC and that the correct respondent has submitted to the jurisdiction of the WRC. The respondent is in attendance.

 I find, therefore, that neither party to the claim would be prejudiced by allowing the amendment of the name as requested.

Accordingly, I am prepared to accede to the complainant’s application to correct the name of the respondent. This is reflected in this decision.

I must now consider the substantive matter in the herein case.

The complainant contends that the respondent discriminated against him on the ground of disability contrary to Sections 3(2)(f) and (g) of the Act in terms of their failure to provide reasonable accommodation in connection with accessing transport services within the meaning of S. 2 of the Acts.

The complainant contends that the respondent discriminated against him on the 15,21,28 October and on other dates on the basis of his disability when they refused to honour his free travel card for purposes of online booking of a seat on the Cork to Kilkenny bus.

The complainant’s case is that his disability and the absence of online booking exposed him to needless and greater stress as to whether he could get on the bus.

Evidence of the complainant’s mother.

The complainant’s mother also functions as his key worker in a care facility.

The complainant is on the autistic spectrum and suffers anxiety when faced with any unexpected or uncertain developments. It took a long time to get him trained and ready to take the bus.

Owing to his being unable to get on a bus on one date, he received a verbal warning for being late from his boss in the retail outlet where he works.

Evidence of the complainant.

The complainant states that on 15 October he arrived at the Cork stop at 4.30pm to catch the scheduled 5pm, Cork to Kilkenny bus.  A few prospective passengers had arrived before him.

 The bus driver waiting for the incoming 5pm bus told him that he would have to wait for the next bus – the 7pm bus. The bus driver told him that pre-booked passengers would have preference over non -booked passengers such as himself and would be boarded first. The complainant could not get on the bus. He was refused access to the bus.

Furthermore, on the 21 and 28 October, though in possession of a free travel card and therefore entitled to free travel, he felt obliged to pre- book a seat in order to avoid the stress of not knowing if he could get a seat on the bus and of being left stranded. He had to pay €15 for each of these journeys.

Also, on 17 September he was refused access to what he thinks was the 3pm Cork – Kilkenny bus; he cannot be sure of the time.  On 24 September or 8 October, he tried to get the 3pm bus but was refused access to the 3pm bus as the bus driver told him that the bus was filled to maximum capacity. He Is unsure of the times of the bus on the 24 September and the 8 October. He works from 4.30-9pm in Cork. The journey takes 2.5 hours. On one occasion- and he cannot be sure of the date, he was refused access to the 1pm bus to Cork for his scheduled work roster of 4.30 -pm. It’s a two-hour journey. He got the 5pm bus, arrived in Cork at 7.30 pm, late for his shift and had to work another day instead. It was on this occasion that he received an informal warning, the first received in his 5 years working there in the retail outlet.

The complainant states that he has autism, and he finds it very difficult, for example, to confront a driver or ask him about accessing the bus. He had minimal engagement with the driver who told him that he could not board the bus.

 Cross examination of the complainant.

He confirmed that he got a seat on the 7pm Cork to Kilkenny bus on the 15 /10/21 and that he was not denied access to the bus.

The complainant confirmed that the company had told him that the number of seats that could be booked online amounted to forty, that an additional 10 seats were available for unbooked passengers ( “walk ups”),and that he was told how to get one of these 10 seats.

The complainant confirmed that he could not provide any evidence of having attempted to book seats online on the 17 September, or on 24 of October.

To the point that he could have attended at the bus stop to secure one of the non-booked seats, he states that he cannot be sure if he attended at the bus stop on the 21 or 29 October.

To the point that there were 15 vacant seats available for walk ups on 21 October, and 6 vacant seats on 29 October which he could have availed of, the complainant stated that that it had happened so often that he did not go to the bus stop to claim one of the unbooked, 21 vacant seats but accepts that he could have gone. Five free travel card holders got seats on the 5pm bus from Cork to Kilkenny on the 29 October- the bus on which he had reserved a seat. He confirmed that he was aware of the capping policy which the company had provided to his mother.

He confirmed that neither he nor his mother had informed the driver that he had a disability.

There is no option on the Dublin Coach website to reserve or book a ticket using a free travel pass, you can only book a ticket if you are paying.

Summing Up.

The complainant’s mother stated that he was denied the option of securing a free seat in advance of the journey and was denied access to the bus service as he was unable to book a free, ticket online using his free travel pass on the Kilkenny to Cork route on the 17 September,  24 September 8  October, 15 October 28  October .

On the 15 October, three passengers who were in the queue after the complainant  were permitted to pay for seats using their bank card and access the bus.

The Equal Status Acts prohibits discrimination on the grounds of disability. 

Free travel passes are only available to:

 people over the age of 66, a person with a disability, or someone caring for someone with a disability.

As a twenty-year-old, he does not look like a person over 66, so it could be assumed that he either held a travel pass because he had a disability, or he is a carer to someone with a disability.

Therefore, denying him access to the bus service because he holds a travel pass is discriminatory on the grounds of his disability.

Without prejudice to the respondent’s preliminary point, the respondent denies that they discriminated against the complainant on the grounds of disability.

He was treated no less favourably than a person without a disability or with a different disability in that all non- booked passengers or walk ups such as the complainant were boarded after all pre booked passengers were seated on the bus. The difference in treatment lies between booked and non- booked passengers.

In order to defend their position, the company are entitled to certainty, currently absent, around the dates on which the complainant states he was subjected to discriminatory treatment.

Evidence of the bus driver.

The witness has worked as a driver with the respondent for the previous two and a half years.

The complaint concerning the 15/10/21.

The witness noticed that the 5pm Cork - Dublin bus which stops at Kilkenny was late. He explained to the waiting passengers that it had broken down and that the next bus would depart at 7pm.

He was obliged to accommodate passengers booked on both the 5 pm and 7pm bus, then walk ons on a first come, first served basis. He prioritised Dublin – bound passengers as it was the last bus to Dublin and other options existed with other bus companies for passengers to get to other, nearer destinations. He told the 5pm walk ons that they would get priority on the 7pm bus. Ninety-five  percent  of walk ups made it on to the 7pm bus and the other five percent  were directed to other transport providers.

The witness never enquired if a passenger in possession of a free travel card had a disability.

While waiting for the bus, the complainant handed his phone to the witness. An unidentified woman at the other end of the phone told the witness that the complainant had to get the last bus home to Kilkenny at 7pm. Neither the complainant nor his mother told him that he had a disability. The complainant got on the 7pm bus.

The respondent’s capping policy, a function of the Covid -19 pandemic, means that 40 passengers can book online and ten are set aside for walk ups. The first ten walk ups which included the complainant would get on.

He was not aware of travel card holders being unable to board the bus.

Cross examination of witness.

The complainant’s mother led the cross examination.

The witness confirmed that the fare paying walk ons going to Dublin got priority over the 11th passenger, a travel pass holder, as the 7pm bus was the last bus going to Dublin and other options existed for non- Dublin bound passengers. Other companies provide bus options on the Cork to Waterford, Waterford to Kilkenny routes. They depart perhaps 10 mins after the respondent’s 7pm bus.

The witness confirmed that on the on the evening of the 15/10/21, three walk ons who had paid for their tickets boarded the 7pm bus before the complainant who was the first walk on to arrive for the 5pm bus. The witness stated that over 2 years, he has had to refuse at a rough estimate ten walk ups on the Cork to Dublin Bus. He never declined any free travel pass holder going to Dublin.

The witness stated that he has no information about the walk ups before they board the bus, and he is behind the wheel. It is only when a walk on passenger in possession of a free travel pass boards the bus that he would see that he/she is the possessor of a free travel card.

He confirmed that he has seen the complainant a few times on the bus.

When he has had to leave people behind, he has rung the duty manager to inform him of the number of passengers whom he could not accommodate.

Evidence of the Engineering Manager.

The witness confirmed that the company changed its website in July 2022 to enable travel pass holders to book online. It took from March 2021 to July 2022 to implement the change. It was protracted due to Covid -19 and its impact on a work force and social distancing. The cost of this change was €50,000 and was more than nominal.

The company invested in new coaches in 2014 and in 2018 to provide wheelchair access for travellers.

The respondent receives state funding in respect of free travel card passengers.

 Covid -19 had a massive impact on their turnover as travel was restricted and social distancing reduced the number of seats which could be used to transport passengers. The company is still not back to 2019 levels.

Conclusion.

The respondent’s solicitor states that it was not impossible or unduly difficult for the complainant to access the respondent’s buses. The respondent accommodated free travel card holders by setting aside ten out of the fifty seats for these passengers. In this way the respondent did provide accommodation for persons with a disability.

Should the adjudicator find that the respondent failed to provide reasonable accommodation, the cost of installing the online booking facility amounted to €500 and was not nominal.

The respondent requests that the adjudicator rejects this complaint of discrimination.

The complainant is on the autistic spectrum and has presented a complaint of discrimination.

I must decide whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2) of the Equal Status Acts, 2000-2015 (the ‘Act’) by failing to provide the complainant with reasonable accommodation for his disability pursuant to Section 4 of those Acts.

Relevant law.

Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) 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) (in this Act referred to as the ‘‘discriminatory grounds)’’

The relevant discriminatory ground for the purposes of this complaint is defined in the Act at section 3(2)(g) and provides:

(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”),

This is a complaint of a failure to provide reasonable accommodation.  Section 4 of the Act states:

“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.”

 The liability of the respondent to submit to the jurisdiction of the WRC is contained in  Section 4(6) of the Act which states.

“Provider of a service” means—

(b) the person responsible for providing a service in respect of which section 5(1) applies.

I am satisfied that the respondent is providing a service within the meaning of section 2 of the Equal Status Acts.

The Burden of Proof.

Before identifying any potential breaches of the Act based on a failure to provide reasonable accommodation, I must first consider if the complainant has met the probative burden as required by section 38A of the Act, as amended.

                                                                                                                                                                                                                                                                                                                                                                                                                           Section 38A of the Act states

 “(1) Where in any proceedings 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.”

In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 38A of the Acts. This requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. The Labour Court in the case of Cork City Council v Kieran McCarthy, EDA 0821 set out the obligations which a complainant must meet.

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there had been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or set of facts which are proved in evidence”.

 What this means for the complainant is that he must first establish that

1) he is covered by the protected ground,

2)that specific treatment has taken place,

3)the treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground and was perpetrated because of his disability.

Application of the law and tests to the circumstances of this complaint.

It is accepted that the complainant has a disability – as per section 2 (d) and (e) and is therefore covered by the protected ground.

I am obliged to determine if the specific treatment, the failure of the respondent to provide online booking facilities, characterised by the complainant as reasonable accommodation, resulted in him being unable to avail himself of the transport service or resulted in him finding it “unduly difficult” to avail himself of the service because of his disability.

This complaint of a failure to offer the complainant reasonable accommodation centres on incidents that spanned September to October 2021.

Incident of 15/10/21.

The specific treatment complained of is the failure of the respondent to provide an advance, free online booking facility for the complainant, a travel card holder, on or before the 15/10/2021.

I accept that the uncertainty resulting from this this could engender a heightened sense of stress and anxiety in a person with autism, needing a set routine, as opposed to passengers who do not have a disability or who have a different disability to the complainant. The failure to provide this facility or reasonable accommodation meant that the complainant had to take his chances with all-comers seeking a seat on the 7pm Cork to Kilkenny bus.

Concerning this date and this specific complaint, the uncontested evidence was that a unique situation arose on that date as the earlier 5pm bus had broken down and two sets of passengers had to be accommodated. The uncontested evidence is that the complainant got a seat on the bus. Hence, the failure of the respondent to provide an online booking facility for free travel card holders did not result in the denial of a service to the complainant. Nor would the presence of an online booking facility have necessarily spared him anxiety on the 15/10 as there were two sets of passengers who had to be accommodated -an anxiety provoking situation for persons without a disability or with a different disability to that of the complainant.

 In the absence of an outright refusal on the part of the respondent, I must consider if the absence of a  free  online facility made it ‘unduly difficult’ for the complainant to avail of the Cork – Kilkenny bus service.  The difficulty or obstacle to a guaranteed, smooth passage on to the bus is the absence of an online advance booking facility denied to him, he states, as he is in possession of a travel card, because of his disability, but available should he elect to pay a fee like other passengers. Contrary to what the complainant asserts, it is not a given that a travel card holder has a disability. This card is not the sole preserve of persons with a disability. Other persons such as carers, not a role claimed by the complainant, are also entitled to free travel cards. Furthermore, the uncontested evidence is that it is only after the bus driver has selected the walk on passengers, in order of their arrival at the bus stop, and after they have been accepted as passengers with their seats secured, not beforehand, that the driver is presented with a travel card as opposed to a fare. So, the complainant’s uncertain passage onto the bus is due to the distinction between fee paying, pre- booked and walk on passengers.

Requirement to book online to secure a seat.

The other instances of a failure to provide reasonable accommodation occurred on 20 and 28 October when the complainant, denied a cost free, online booking facility as a free  travel card holder and as a person with a disability,  had to forfeit his right to free travel and pay a pre booking fee of €15 to secure a seat on the Cork to Kilkenny route in order to avoid the stress, heightened in a person with autism, and  experienced by him on the 15 October and on other dates.

 Did the journey become unduly difficult due to the cost of €15? The uncontested evidence is that the absence of an online booking facility for free travel card holders did not diminish the availability of seats for the complainant as there was ample capacity for unbooked passengers on both those dates; five free travel card holders got a seat on the 29 October one of the days which the complainant had incurred the €15 cost.

The complainant was unsure about the times of buses on other dates and whether he had attempted to book online on 17 September, 24 September, and 8 October 2021.

The respondent remedied the situation in July 2022.

Did the respondent know that he had a disability?

The complainant ’s own evidence was that he did not tell the driver or anyone in the company that he had a disability. It is the case that the complainant’s mother emailed the respondent company about the absence of an online free booking facility for travel card holders, a year previously, the absence of which she held to be discriminatory on the grounds of disability but did not disclose that she was making the enquiry on behalf of her son, nor did she name her son who bears a different surname to her own, nor did she identify his particular disability or consequential needs. The complainant’s mother emailed the company after the incident of the 15/10/211 and did state that the absence of an online booking facility was discriminatory particularly towards persons with a disability but did not name her son. The ES.I form submitted on the 30/10 /21 after the incidents complained of does align the complainant with the specific disability.

I find that the respondent did not know of the specific diagnosis of the complainant nor of the specific needs requiring supports on the dates on which the incidents occurred.

In   Garcia-Rodriquez v Bus Éireann, DEC-S2008–77, the complainant was denied the information and support necessary for her to board the bus on time and the bus left without her. The equality officer stated:

 “The complainant is correct in identifying that, in the case of a person with a disability, treating him or her the same as they would have treated a person without a disability or a person with a different disability can constitute discrimination in situations where such same treatment would make it impossible or unduly difficult for the person to avail him or herself of the service. The duty to provide reasonable accommodation arises when a service provider becomes aware of the need to provide special treatment or facilities to a person with a disability. In this case I am very mindful of the fact that the complainant never told anyone working with Bus Eireann that she had a disability nor requested information or assistance from such a person. She relied on the information and assistance of persons not associated with the service provider. In such a situation, it would be inherently unjust to hold a service provider responsible for any alleged inaction. “

The Act provides that an apparently neutral provision, a charge to pre book a seat, applied to persons with a disability and without a disability alike, could have a greater adverse impact on him as a person with a disability than would be the case for a person without a disability. and, thus, amount to less favourable treatment. But the respondent was not on notice of the complainant’s diagnosis or needs. Nor was any evidence presented of the complainant having ever exhibited any behaviours associated with his disability.

 In A Complainant v A Supermarket DEC -S2010-013, the complainant, who it was accepted had a disability, was asked to leave the premises because of his behaviour.  The Equality officer held that 

The onus is on the complainant to prove his prima facie case and I am not satisfied that any of the respondent's staff would have known him frequently enough and/or well enough to have become aware of his disability. In such circumstances, then, the onus is on the complainant to prove that he explicitly made the respondent aware that he had a disability. ……In particular, there was no evidence that any member of the management of the respondent, or anyone directly involved in the incident in question, were told by Mr X that the complainant had a disability

In that context, I must conclude that the treatment of the complainant by Mr B, or any other treatment of the complainant by the respondent in relation to the issues at stake in this complaint, was not connected with the complainant's disability. Consequently, the respondent did not discriminate against him on that basis, and so the complainant has failed to establish a prima facie case of discrimination on the ground of disability and his complaint fails.

While the complainant makes a case that the absence of a pre booking facility was inherently discriminatory against persons with a disability, it is this complaint, its impact on this complainant, his particular needs, needs which were unknown to the respondent, which I must address.

Given all of the evidence and in all of the circumstances, I do not find that the complainant has raised a prima facie case of discrimination on the grounds of disability or that the respondent, not on notice of his disability, failed to provide him, with reasonable accommodation to the extent that he was unable to avail of a service or to the extent that it was unduly difficult for him to avail of the service.

I must conclude that his complaint fails.

.

The complainant has failed to raise a prima facie case of discrimination on the grounds of disability contrary to the provisions of the Equal Status Acts 2000-2015, and the complaint fails.

Respondent not on notice of the disability.