Complainant

Respondent

Parties

Wayne Edward  Nash

Road Safety Authority

Representatives

  Self-represented

 McCann Fitzgerald LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049646-001

11/04/2022

The complainant contends that he was discriminated against on the basis of his gender and disability, contrary to the provisions of the Equal Status Acts 2000-2015 on 24 February 2022 when he was prevented from renewing his driving license at the respondent’s Centre.

Incorrectly impleaded respondent.

The respondent submits that the complainant has impleaded an incorrectly named respondent. The correct respondent is the Road Safety Authority (“RSA”). Since January 2013, the RSA has responsibility for driving licences in Ireland and does so through a National Driver Licence Service (“NDLS”), enabling consumers to acquire or renew their driving licences.

The complainant submitted a complaint against the National Driving Licence Service (“NDLS”), which is merely a trademark against the Road Safety Authority (“RSA”) and therefore does not possess legal personality and cannot be a party to this complaint.

The respondent stated that he would leave it to the adjudicator to decide if she had jurisdiction to hear the complaint.

Incorrectly impleaded respondent.

The complainant stated that there were no signs anywhere in the respondent’s premises indicating that the entity renewing driving licences was the RSA.

Incorrect impleaded respondent.

The matter of correcting the respondent’s name was addressed in Auto Direct Ltd v Vasile Mateui, DWT1922 which upheld that complainant’s request to amend the respondent’s name to reflect the correct legal title. In doing so, the Labour Court relied on the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan accepted the request to correct the name in the circumstances obtaining, viz that the respondent was on notice of the complaint, was in possession of the details of the complaint and was in attendance. He held:

“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)….. 

In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

On the basis of the above authority, I decide to correct the name of the respondent to reflect its correct legal title. This is reflected in the decision.

Complaint of discrimination on the grounds of disability.

The complainant submits that he was discriminated against on the basis of his disability on 24/2/2022 in the respondent’s driving licence renewal centre, when he was refused the opportunity to renew his driving licence via a cash payment.

He submitted an ES.1 form to the respondent on 7/3/2022 and received a reply on 22/3/2022.

The complainant submitted medical evidence attesting to the fact that he suffers from what is called a personality disorder. He is on medication for same and his medication is renewed every few months.

Evidence of the complainant given under affirmation.

The complainant went to the respondent’s Driving Licence Centre in Athlone on 24 February 2022 to renew his driving licence.

He explained to the employee handling his renewal application, the Verification Officer, (“VO”), that he had been unable to secure a Payzone Voucher in three separate shops. This was necessary as the respondent will not accept cash payments. The VO refused to accept cash. He asked to see the policy. She requested him to leave the Centre; she pointed her finger to the door and said “out”. He formed the view that she wanted to leave the premises.

He disputes the respondent’s description of him as aggressive.

He then advised the VO that he had a second credit card which he produced for purposes of paying the renewal fee, but the VO refused to deal with him and told him to leave the premises. She would only give him her first name and not her surname. Upon leaving he told her that he had a disability. She persisted in asking him to leave the Centre.

He disputes the respondent’s description of his behaviour as threatening. He merely remained in his seat when asked to leave.

He accepts that the policy applies to everyone, but he can only speak for its impact on him.

He felt very humiliated by this treatment when he was prevented from renewing his driving licence. His disability accentuates his feeling of being treated unfairly by authorities.

Complaint of discrimination on the grounds of Gender.

He further contends that he was discriminated against on the grounds of his gender and points to his clothes- a track suit and baseball cap as evidence of what he believes is discrimination on the grounds of gender. 

Cross examination of the complainant.

The complainant confirmed that he had never taken any previous complaints against the NDLS or RSA, nor had he given evidence in any other case against the respondent.

He discovered he could purchase his renewal with a Payzone voucher through online investigation.

He stated that he did not know if persons with a disability experienced difficulty in getting a Payzone voucher.

To the question as to why he did not inform the VO that he possessed a second credit card, he replied that she was shouting at him; she said, “out”.

He confirmed that he had never advised the VO that he had a disability. He does not know if she was aware of his disability.

He does not know if a person not suffering from this particular disability such as a personality disorder would have been treated differently.

Concerning an alleged failure on the respondent’s part to offer reasonable accommodation, he confirmed that he made no such request.

He confirmed that the VO was unaware of his disability.

He disputes that the VO offered him sufficient time. He left the Centre about 5.10 pm or 5.15.

He disputes the VO’s statement attributed to him that he would make her life hell if she did not give him the licence. He stated that he remained seated when the VO asked him to leave. He stated that he did not report the matter to the Gardai but did report it to his TD.

He confirmed that he has made no further applications to renew his licence. He does not have an up-to-date licence.

Complaint of discrimination on the grounds of disability.

The respondent contends that the failure of the RSA to accede to the complainant’s preferred form of payment in his application to renew his deriving licence does not amount to discrimination on the basis of disability and/or gender, and that the complaint is wholly without substance.

The RSA has responsibility for driving licences in Ireland and delivers on this through a National Driver Licence Service in multiple centres where an applicant can seek to renew their driving licence. The RSA has created an NDLS customer charter which provides that licence fees can be paid by credit or debit card, Google Pay or Apple Pay and Payzone voucher. Their charter also ensures

“That the needs of people with disabilities are fully catered for. We will make every effort to ensure that access to our buildings and to all of our services is maintained for people with disabilities and others with specific needs.”

The respondent stated that on 24 February 2022, the complainant arrived at 4:56pm in the Athlone centre for a scheduled appointment at 4:50pm to renew his driving licence. He sat in the assigned booth. He stated to the assigned Verification Officer (V0) that he could pay his application fee with cash. The complainant then explained that his credit/debit card was not working and that he had been unable to purchase a Payzone voucher (another accepted method of payment by the NDLS) despite having made efforts at a number of retailers and a Credit Union. The V0 relying on the customer charter and a protocol for such queries, informed him of the NDLS policy that cash, cheques, and postal orders are not accepted by the NDLS as methods of payment and that she could not therefore accept his offer of a cash payment. The complainant stated that that he had a legal right to a licence and that she personally and the NDLS was discriminating against him. He then stated that he wanted to make a complaint to the VO’s direct supervisor. The complainant took particular issue with the fact that the VO would not provide her full name to him which was in line with NDLS protocol. The VO informed the complainant that he could make a complaint by way of post, email, or by using a specific helpline number. In response the complainant threatened legal action. At this point the VO informed the complainant that she could no longer help him and repeated the avenues by which he could make a complaint.

According to a contemporaneous note taken by the VO, the complainant told the VO that he would not leave the Centre without a licence. She then called a security guard. At this point (roughly 5.15pm), the complainant produced a second card and told the security guard that the VO was refusing to take his payment and said that he had told her from the beginning that one card was not working.

At this point, it was well past close of business and given that he had acted in a threatening manner, the VO was unable to help him.

At approximately 5.45pm, the complainant finally left the Centre, but remained outside the door with the security guard for a further 15-20 minutes.

Complaint of discrimination on the grounds of gender.

The complainant states that he was discriminated against on the basis of his ‘demeanour’ and therefore on the gender grounds.

No such prescribed ground exists, and this complaint must fail.

Legal Arguments.

The complaint of discrimination is misconceived.

The respondent submits that the instant complaint adequately satisfies the requirements for dismissal under section 22 of the Act. The Complainant has failed to identify an appropriate comparator with any specificity, which is a crucial component of any successful discrimination claim, and his complaint has no prospect of success. It is simply not the case that the provision of services by the NDLS would have been any different had the ultimate consumer of those services  been a person who did  not have a disability or was  an individual of a different gender.

 No prima facie case

The Complainant has failed to meet the requirements of Section 38A of the Act which provides that: -

“Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove to the contrary.”

The requirements of a prima facie case have been considered by the Labour Court in Southern Health Board v Mitchell [2001] ELR 201, which stated as follows:

“The first requirement… is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

 There is no evidence that the complainant has been treated less favourably than a comparator, hypothetical or otherwise, would be treated in respect to payment methods at issue, nor is there any evidence that such methods have a disproportionate burden on adherents of a particular gender or for those who have a disability. This is evidenced by the fact that the complainant actually seems to have had a number of credit and debit cards.

In Cork City Council v McCarthy EDA 21/2008, the Labour Court stated that where the primary facts alleged are provided it remains for the Court to decide if the inference or presumption contended for can be properly drawn from those facts. This entails a consideration of the range of conclusions which are appropriate to be drawn to explain a particular fact or a set of facts which are proved in evidence.

No inference of discrimination can be drawn from the facts as set out by the complainant. The complainant, not having adduced facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred, has therefore failed to discharge the onus to establish a prima facie case. As far as direct discrimination is concerned, the payment methods for renewal of a licence by the NDLS apply to all customers, regardless of their disability status or gender. The complainant was not treated differently as compared with any other applicants for the renewal of a licence. The issue was instead the aggression and threat the complainant presented to the VO.

Contrary to the complainant’s allegations, the VO acted entirely according to the NDLS' standard protocols.

It is difficult to see how requirements for non- cash payments are disproportionate, bearing in mind the fear of cash transactions which still persists among a wide section of the public in the wake of the pandemic and the efficiency, safety and security card transactions bring to both payer and payee regardless of their status.

Concluding remarks

The complainant has failed to establish a prima facie case of discrimination. The payment requirements noted above in relation to an application apply whether the applicant sought is male, female, with disability or otherwise. The level of service offered by the Respondent is not influenced by the mode of dress of its service users, nor their demeanour (save that where a service user becomes aggressive).

All customers are subject to the same requirements, which have no especial impact on those of particular genders or disabilities.

The complaint must be dismissed.

Complaint of discrimination on the grounds of disability

I must decide whether or not the respondent discriminated against the complainant contrary to section 5 of the Act in failing to provide goods, service or facilities and in terms of section 3(2)(g) of the Equal Status Acts, 2000-2015 in that the complainant’s claim for an exemption from the respondent’s regulations regarding a renewal of a driving licence was rejected by the respondent.

I am satisfied that the respondent is a provider of services within the meaning of the Equal Status Acts.

Relevant law.

Section 3(1) of the Act 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)’’

Section 3(2)(g) goes on to state that as between any two persons, the discriminatory ground of disability arises where

“(g) .one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”).

Burden of Proof.

In any case of discrimination, the first step for a complainant is compliance with Section 38A (1) of the Act. It provides that the burden of proof rests with the complainant and means that

 " 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."

It requires the complainant to establish facts upon which he/she can rely in asserting that the prohibited conduct has occurred. These facts must suggest a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

 The Equality Officer in Hallinan v. Moy Valley Resources DEC-S2008-25, in interpreting the obligation which a complainant must meet by virtue of section 38 A, held that in order to establish a prima facie case exists, the complainant is obliged to satisfy three elements of a test. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; and

- That this treatment is less favourable than the way someone who is not covered by the relevant    discriminatory ground is, has been or would be treated.

This test was followed in other decisions.

Application of the law and the above test to the circumstances of the instant case.

The complainant submits that he is covered by the discriminatory ground in that he was denied a service due to his disability.

it is accepted that the complainant was denied the option to use cash to renew his driving licence. It is accepted that after 25 minutes he produced a credit card and was refused the option of renewing his licence. It is accepted that the engagement between himself and the VO became confrontational. The extent of is disputed by the complainant. It is accepted that he declined to leave the premises when asked to do so. It is accepted that a security guard was called to effect his removal from the premises.

Section 2. (1) defines disability as

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour”

The complainant submitted medical statements attesting to the existence of a condition described as a personality disorder and which meets the description set out in section 2.(1)(e) of the Act.

The respondent did not dispute the existence of a disability.

The complainant was subjected to specific treatment in that he was prevented from renewing his licence with a cash payment. Upon production of a credit card, at 5.15 pm, he was asked to leave the premises. No account was taken of his disability, a condition which makes encounters with authorities who deny him a service very difficult for him.

That this treatment on 24 February 2022 is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

It is not disputed that the requirement to pay cash to renew one’s driving licence is applies to persons with a disability, without a disability and to persons who may have a different disability. The complainant produced no evidence indicating any difference in treatment in how the regulations were applied.

The complainant produced no evidence of how his disability impeded him from using a credit card and the undisputed evidence is that he produced such a card after a period of argument and his cash application was refused. Hence his disability did not prevent him using credit cards on occasions.

I do not find that the respondent’s requirement to renew a driving licence with a non- cash payment amounts to discrimination on the disability grounds.

In relation to his contention that the respondent should have accommodated him in accordance with section 4 of the Act, and that they discriminated against him when seeing his troubled state, they refused to accept his credit card for the licence renewal fee at 5,15 pm, albeit  fifteen minutes after closing time.

To hold such an expectation that the respondent should make reasonable accommodation presupposes knowledge on the part of the service provider. The complainant’s evidence was that it was only when he was exiting the premises that he told the VO that he had a disability.  He did not specify his disability nor what type of specific assistance or accommodation was necessary.

In Rodriguez v Bus Eireann, DEC-2008-077, the Equality Officer stated

“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 anyone”.

There was a confrontation in the Centre between the complainant and the VO. Many details were not disputed. But how would the respondent be obliged to make the leap to deducing that the complainant’s behaviour- behaviour which prompted the respondent VO to call the security officer, was attributable to a disability when not on notice of it. Hence the respondent was not on notice of how the complainant’s disability required a particular form of accommodation.

Therefore, I cannot find that the respondent discriminated against the complainant pursuant to section 4 of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment.

I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of disability.

 His complaint cannot, therefore, succeed.

Complaint of discrimination on the grounds of gender.

This complaint was based on what the complainant wore on the 24/2/2022.

I find this complaint to be misconceived.

 The complainant has failed to establish a prima facia case of discrimination on grounds of disability.   I decide that the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015.

 I find that the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failure to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment.

The complainant has failed to establish a prima facia case of discrimination on grounds of gender.

 I decide that the complainant was not discriminated against contrary to section 5 of the Act and in terms of 3(2)(a) of the Act

Failure to raise an inference of discrimination on grounds of disability and/or gender.