Complainant

Respondent

Anonymised Parties

Passenger

Transportation Company

Representatives

Her Father

Mr. Conor O'Toole, Dawson O'Toole Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00054078-001

09/12/2022

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

CA-00054078-002

19/03/2023

On 4th October 2022, the Complainant, via her father, issued notification of a complaint to the Respondent utilising the form “ES1”. This form alleged that the Respondent discriminated, harassed, and failed to provide a reasonable accommodation for the Complainant. In the absence of any substantive reply, the Complainant referred the present complaint to the Commission on 9th December 2022.

A hearing in relation to this matter was convened for, and finalised on, 12th July 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

In advance of the hearing, both parties issued extensive submissions. These submissions were expanded upon and contested by the opposing side in the course of the hearing. Following the hearing, further submissions were invited by the Adjudicator in relation to an evidentiary point that arose during the hearing. Both parties issued further submissions in this regard that were exchanged between the parties.

At the outset of the hearing, the Respondent raised a preliminary issue as to the correct legal title on the Complainant form. As this rose due to a simple administrative error on the part of the Complainant’s representative, the name of the Respondent was amended to reflect their correct legal title. At the outset of the hearing the parties agreed that the notification requirements imposed by Section 24 of the Act had been complied with in respect of the initial complaint. The notification requirements regarding the subsequent complaints will be considered below.  

In circumstances whereby the Complainant’s disability is referenced throughout the decision, I have exercised my discretion to anonymise the decision in its published form.

As set out above, the Complainant notified the Respondent as to the initial allegation of discrimination and harassment on 4th October 2022. Thereafter, this initial complaint was referred to the Commission in accordance with the requirements of Section 21 of the Act and jurisdiction is assumed in relation to this aspect of the matter.

Thereafter, on 19th March 2023, the Complainant, via her representative, referred a second complaint outlining a further two allegations of prohibited conduct for the purposes of the present Act. These two further allegations outlined further instances of the prohibited conduct complained of in the initial complaint. While certain factual differences occur in relation to the same, the fundamental allegations remain broadly constant across all three complaints.

In this regard, Section 21(2) of the Act (as amended) provides that,

“Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”.

Thereafter, subsection 4 provides that,

“The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

In consideration of the foregoing, it is apparent that the latter two complaints raised by the Complainant were not notified to the Respondent in accordance with Section 21 outlined above. No application as made to waive the notification requirement on the grounds of exceptional circumstances, nor is it apparent that any such circumstances exist. Having regard to the foregoing, while accept jurisdiction as to the first allegation raised by the Complainant, I find that I do not have jurisdiction in relation to the latter two as a consequence of Section 21. In so finding, I note that the Complainant’s allegations are largely common between the three complaints, in that all arise from the pre-booking facility operated by the Respondent, a matter which is considered in some detail under the first complaint.

At the outset of the hearing, the Complainant outlined that she had suffered an acquired brain injury. This ABI resulted in certain symptoms that led to anxiety, lack of confidence and memory problems. In recent years the Complainant, with the assistance of her family and support workers have worked hard to bring her to a point whereby she can undertake certain tasks independently. One of these such tasks is travelling independently to her third level campus by means of the Respondent’s bus services.

On 23rd September 2022, the Complainant waited at the bus stop in the normal course. When the Complainant sought to board the bus, she was informed that there was no space on the same and that it was fully booked out. This caused the Complainant a great deal of upset as she noticed that almost half the bus was empty, with many free seats in her field of vision. At this point, the driver stated that the Complainant may wait at the front of the bus until it could be determined whether a seat would become available. Following the driver going outside to check whether certain passengers had arrived, he informed the Complainant that she could remain on the bus so long as she displayed her free travel pass. This interaction caused the Complainant a great deal of anxiety and upset. In particular, the Complainant stated that she was upset and embarrassed by being forced to wait in front of all the other passengers prior to being allowed to board the bus. She stated that the entire point of her free travel pass was to allow her to travel independently. She submitted that she was prevented from booking online as the same incurred a five-euro fee regardless of the duration of the journey, the Complainant further submitted that on occasion she may not be aware of her ability to travel until a few hours prior to the journey, further hampering her ability to prebook. Following this journey, the Complainant father emailed the Respondent setting out the difficulties the interaction had caused his daughter. By response, the Respondent stated that the Complainant was able to pre-book a ticket so long as she paid the five-euro booking fee. By further email the Complainant’s father stated that the booking fee effectively defeated that purpose of free travel. By further email, the Complainant stated that she believed that she felt discriminated against by not being allowed to board until everyone else had gotten on. By response, the Respondent advised that their boarding policy was to allow those with prebooked ticket to board first, followed by those who had not pre-booked a ticket. In this respect, they submitted that they had not discriminated against the Complainant.

In addition to he foregoing, the Complainant gave evidence of a further such incident that occurred on 17th March 2023. In this instance, the Complainant sought to board the bus and was again informed that she could not do so as she had not pre-booked her ticket. On this instance, the Complainant stated that she could not pre-book as she was unsure as to what time she would finish on the date in question, with the five-euro fee leading to additional difficulties. By response, the driver stated that it was not policy to allow persons that has not booked a ticket to board a fully-booked bus. Notwithstanding the same, the Complainant observed two other persons being permitted to buy tickets and board the bus following her refusal. Once the Complainant questioned this development, the driver allowed her to bord without an explanation regarding his previous refusal. The Complainant submitted that this again had the effect of humiliating her and causing her extreme distress. Finally, the Complainant reference a similar incident that occurred following the referral of complaint and prior to the hearing of the matter.

By submission, the Complainant alleged that the Respondent failed to accommodate her disability. In this regard it was submitted that the driver could have asked where she was getting off and seen that she was on the next stop. She submitted that she felt embarrassed, humiliated and harassed by the manner in which she was treated, particularly in circumstances whereby her disability is hidden. Finally, she submitted that the five-euro booking fee created an unjust barrier in permitting her to book her trip and defeated that purpose of her free travel pass.

In denying the Complainant’s allegations, the Respondent denied that it discriminated against, harassed or failed to reasonably accommodate the Complainant.

The Respondent submitted that in July of 2022, they had devised a system that allowed the persons with a disability pass to reserve their seats through the online booking portal for a nominal booking fee. In this regard, it was submitted that the Respondent competitors, who are much larger organisations, either have no such facility or charge a similar booking fee. The Respondent submitted that the creation of this system came at a significant cost, and was extensively advertised in both print and online.

Regarding their booking policy, the Respondent submitted that they are obliged to reserve the seat for their pre-booked customers. In a situation whereby there is additional capacity on the bus, which is almost always the case, the driver will allow person without pre-booked tickers to board. In evidence, a representative for the Respondent stated that they are well aware of the demand for their services and almost never have to refuse passengers. In addition to the foregoing, the Respondent submits that it always keeps a certain amount of seats available to accommodate persons that have not pre-booked tickets.  

Regarding the incidents referred to by the Complainant, the representative for the Respondent advised that he was not there personally and could not give direct evidence in tis regard. Nonetheless, he stated that the interviewed the drivers in question who disputed the Complainant’s version of events. In this regard, the witness stated that his understanding was that the drivers were simply adhering to the Respondent’s boarding policy. While the witness accepted that the bus may have appeared to be partially empty, this bus would still have been fully booked with persons getting on at the next stop. In this regard it was noted that in two situations described by the Complainant she was permitted to board the bus and complete her journey once the pre-booked passengers had boarded and it was observed that the bus was not full.

By submission, the Respondent stated that they did not discriminate against or harass the Complainant. In this regard, they stated that the Complainant was treated in the same manner as all other prospective passengers. They submitted that she had the option of pre-booking a ticket but elected not to do so. In this regard, the Respondent submitted that the Complainant was in fact seeking preferential treatment on the grounds of her disability.

The present matter involves a series of complaints of discrimination, harassment and failure to make a reasonable accommodation for the Complainant. While the Complainant referenced numerous examples of alleged prohibited conduct, the primary root of each of these issues arises from the Respondent’s system of prebooking, how the same relates to persons in receipt of a free travel pass and the subsequent boarding of the vehicles.

In this regard, Section 5(1) of the Act provides that,

“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.”

Section 2 of the Act defines “service” as follows,

“a service or facility of any nature which is available to the public generally or a section of the public  and without prejudice to the generality of the foregoing, includes –

(iv) transport or travel”

Section 3(1)(a) of the Act provides 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 specified in subsection (2)”

Section 3(2)(g) specifies the following as such a ground,

“…that one is a person with a disability and the other either is not or is a person with a different disability”.

Section 38A of the Act places the burden of proof on the Complainant to establish, in the first instance, facts from which the discrimination alleged may be inferred. 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.

In the case of Olumide Smith -v- The Office of the Ombudsman [2020] IEHC 51, Simmons J. stated that,

“The effect of these legislative provisions is that a complainant is required to discharge a reduced burden of proof, and once this is done, the burden of proof is reversed. As explained by Advocate General Mengozzi in Case C415/10, Meister ECLI:EU:C:2012:8, [22], the effect of the burden of proof provisions under the Racial Equality Directive (and other related Directives) is that a measure of balance is maintained between the parties, enabling the complainant to claim his or her right to equal treatment but preventing proceedings from being brought against a respondent solely on the basis of the complainant’s assertions.”

In the present case, many central points are not in dispute between the parties. It is not disputed that the Complainant is person with a disability as defined in the Act. Nor is it in dispute that the Respondent provides a service within the meaning of the Act, and that the Complainant sought to avail of the service within the time-period outlined in the Act.

As stated above, the source of much of the contention between the parties arises from the manner by which persons with a free travel pass may pre-book tickets on the Respondent’s website. In this regard, it is commons case that while such persons may book tickets in this manner, they will be subject to a five euro “administration fee”. The first point to note in relation to the foregoing is that the free travel scheme relates not only to those with disabilities, but also relates persons over 66 and certain carers. As such, it is far from a foregone conclusion that applicant under the free travel scheme will do so on the grounds of disability. In this regard, it is further noted that the fee in question arises not as a result of any disability, but as a consequence of the issues relating to the implementation of a system to pre-book tickets for persons that avail of this scheme. Finally, it is noted that the free travel scheme allows for payment in respect of certain public transportation to be waived. The scheme does not extend to the reservation and pre-booking of such seats, nor does the scheme guarantee a holder to access public transportation at all times, such as on fully booked services. 

A similar set of circumstances was considered by the former Equality Tribunal in the matter of A Student -v- A Bus Operator DEC-S2016-075. Here, the Tribunal considered the inability of a person who is considered disabled for the purposes of the present Act to pre-book utilising a free travel pass. In this regard, the Tribunal held that,

“I find that the reason why the complainant was not afforded access to the bus on this occasion was not in any way related to her disability but rather was directly attributable to the fact that she was the holder of a Free Travel Pass. It is clear that the holder of a Free Travel Pass can be a person either with or without a disability and that the respondent applies the same rules to all persons holding a Free Travel Pass who wish to use its services irrespective of whether or not the person has a disability.”

Having regard to the foregoing, I find that the Complainant has not made out a prima facia case as to the discrimination as to the operation of the policy itself.

The next matter that falls to be considered is the allegation that the Respondent failed to make a reasonable accommodation for the Complainant. In this regard, Section 4 of the Act sets out the obligations on providers of a service to reasonably accommodate persons with a disability, and provides as follows,

“(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 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.”

Regarding the initial incident, it appears that the Complainant was temporarily prevented from boarding the Respondent’s vehicle. Thereafter, the Complainant was obliged to remain close to the driver while all pre-booked passengers boarded the vehicle. Following the same, the Complainant was permitted to board the vehicle using her free travel pass and completed her journey. Having regard to the foregoing sequence of events, it is apparent that the Complainant did in fact avail of the Respondent’s services, albeit with a temporary delay, without a requirement for any special treatment facilities.

The final part of the Complainant’s case is that she believed that the manner in which she was treated on the date in question served to embarrass and humiliate her. In this regard, the Complainant submitted that the same constitutes harassment for the purposes of the present Act. In denying this allegation, the Respondent submitted that the driver in question was simply administering their agreed upon policy and that the Complainant was treated with respect at all times.

Regarding these allegations, Section 11(1) provides that,

“A person shall not…harass…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.”

Subsection 5(a) goes on the define harassment as “any form of unwanted conduct related to any of the discriminatory grounds”.

Regarding the incident of 23rd September, many of the key facts are not in dispute. In this regard it is agreed that on that date the Complainant waited to board the vehicle. When the Complainant reached the area where she would normally display her free travel pass, she was informed by the driver that he would have to board the pre-booked passengers first. While the driver did so, the Complainant waited towards the front of the vehicle until these persons were boarded. Thereafter, the Complainant was permitted to board the vehicle and complete her journey. In evidence, the Complainant stated that this sequence of events caused her a significant amount of distress and anxiety. She stated that as a free travel holder she was singled out in front of all other passengers and informed that she might not be allowed onto the vehicle. She submitted that the distress caused by this incident caused her to suffer ongoing anxiety regarding independent travel. In seeking to dispute the Complainant’s version of events, the Respondent submitted that the driver in question was interviewed some time later and denied any harassment or discriminatory treatment.

In considering the accounts of the events in question, I note that the Respondent did not call the driver in question to give direct, sworn evidence. In this regard, I prefer the evidence of the Complainant as being the best evidence available. In addition to the same the Complainant presented an open and honest account of the events in question as well as the impact the same had upon her. However, from the evidence tendered by the Complainant, it is apparent that on the date in question, the driver was simply seeking to follow the Respondent’s own internal policy of allowing pre-booked ticket holders to board the vehicle in advance of those without reserved tickets. While I do not doubt the Complainant’s account of her subjective experience, in applying the same to the test outlined in Section 11 and 5, I find that the same arose from the driver’s administration of his employer’s policies and was not, in any way, connected to the Complainant’s disabilities.

Having regard to the accumulation of the foregoing points, I find that the Respondent did not engage in prohibited conduct within the definition of the Act.

CA-00054078-001

I find that the Respondent did not engage in prohibited conduct within the definition of the Act.

CA-00054078-002

I find that the Respondent did not engage in prohibited conduct within the definition of the Act.

Disability, Discrimination, Free Travel, Reasonable Accommodation