Complainant

Respondent

Parties

Kenneth Walsh

Bus Éireann

Representatives

Pat McCarthy, a friend of the complainant

Christian Clarke, Accessibility Manager, Bus Éireann

Act

Complaint Reference No.

Date of Receipt

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

CA-00058994-001

19/09/2023

The complainant has a vision impairment and, for the past seven years, he has used an assistance dog.  The respondent operates the 226 bus service between Kinsale and Cork.  Departures from Kinsale are on the hour from the town car park.

Incident on June 26th 2023

In his submission to the respondent on his ES1 form dated September 19th 2023, the complainant informed them about his experience on Monday, June 26th 2023, when he planned to get the bus at 1.00pm from Kinsale.  He was about fourth or fifth in the queue to board the bus, but when he entered the bus, the driver told him that there was no room for him and his guide dog.  The complainant said that he asked the driver if he was refusing to let him travel on the bus, to which the driver replied, “yes.”  He told the complainant that there was no room.  The complainant said that he waited until the other passengers in the queue had boarded the bus, and he approached the driver again, asking him if he was preventing him from travelling.  He said that the driver replied that he was refusing to let him travel on the bus because there was no room for him with his guide dog.  When he told the driver that he had never been refused permission to travel on a bus with his guide dog, the complainant said that the driver replied, “There’s a first time for everything.”  The complainant asked the bus driver for his name, and the driver told him to take a picture.  The complainant said that he was unclear what it was he was being advised to take a picture of.  The complainant said that, after this exchange, he and his dog got off the bus.

The complainant had a medical appointment in Cork at 2.00pm, and, as the next bus was only leaving Kinsale at that time, he had to take a taxi.  He hadn’t brought enough cash for the fare and the taxi hadn’t got a card facility.  The taxi had to divert to Cork Airport so that the complainant could withdraw cash from an ATM.  The ATM machine at the airport was a touch-screen unit and the complainant had to give the driver his bank card number to withdraw the cash for his fare.  He said that it was extremely stressful to have to give his PIN number to a stranger.

On his return journey from Cork at 5.00pm, the complainant had no problem travelling on the bus with his guide dog.  When he was at the bus stop in Cork, he was approached by a man who introduced himself as Thomas Daly and said that he had been at the stop in Kinsale at 1.00pm.  Mr Daly told the complainant that he witnessed the bus driver refusing to let him travel on the bus.  He said that he heard the driver refusing to give the complainant his name and indicating to him that he could take a photo of the license plate.  Mr Daly wrote a statement describing what he witnessed and the complainant sent this to the WRC with his complaint form. 

The following day, the complainant made a complaint to Bus Éireann in Cork about how he was treated.  He also wrote to the company’s access officer and, on June 30th, he sent an email to Mr Aled Williams, whose name he received from the Association of Guide Dogs.  On July 4th, the complainant said that he got a response from someone in Bus Éireann in Cork telling him that she had forwarded his complaint to her manager. 

Evidence of the Complainant

At the hearing, the complainant recounted the events of the afternoon of Monday, June 26th, when he commenced his journey at the bus stop in Kinsale, intending to travel to Cork on the 1.00pm bus.  He explained that the bus used on the 226 service is generally a double decker bus, but on this occasion, it was a coach type bus.  When he boarded the bus, he was informed by the driver that there was no room for him with his dog.  The complainant explained that the driver must have thought that, because coach buses have no wheelchair space, that there wasn’t going to be a space for his dog.  However, he said that, when he travels on a coach, he sits in a seat at the very back and his dog sits at his feet on the floor, not in the way of other passengers.

The complainant said that the driver told him to wait for a double decker bus.  When he explained that he had a medical appointment in Cork at 2.00pm, he said that the driver’s response was, “That’s not my problem.”  The complainant said that the bus was practically empty and he phoned a friend and asked for advice about what to do.  He said that his friend told him to try again to board the bus.  He approached the driver again and asked to be allowed to travel.  He said to the driver, “I’ll head away down the back,” but he said he was told again that there was no room.  He said that he felt that the driver was looking for an argument and he didn’t want to cause a fuss, so he got off the bus.

The day after this occurrence, the complainant sent an email to Bus Éireann, but he got no reply.  He said that the problem could have been resolved if someone in the company had replied to his complaints.

Formal Complaint

In the absence of any response to his informal enquiries, on September 19th 2023, the complainant submitted an ES1 form to Bus Éireann.  He said that he was treated less favourably than a person who hasn’t got a vision impairment, because, if he wasn’t blind and he didn’t need an assistance dog, he would have been allowed on the 1.00pm bus from Kinsale to Cork on June 26th.   He said that the driver had no consideration for his safety and the fact that he would have had to wait for an hour for the next bus, and that this would have made him late for his appointment.  He got no response to his ES1 form.

In his evidence at the hearing on March 8th 2024, the complainant said that it is difficult for vision -impaired people to use the PDF complaint form that the WRC provides on its website for submitting complaints.  He said that he contacted the access officer in the WRC for help.  Even after consulting with the access officer, the complainant said that he reached the conclusion that a blind person cannot independently submit a complaint to the WRC.  He got assistance from his friend, Pat McCarthy, who attended the hearing with him.  Mr McCarthy advised the complainant to contact the National Council for the Blind (now Vision Ireland), who provided the complainant with a manual complaint form.  After some delay, on October 4th 2023, the complainant submitted this complaint to the WRC.

Mr McCarthy said that he contacted Bus Éireann’s Travel Assistance office in Cork.  He said that it wasn’t possible to find the name of the access officer on the company’s website.  He said that, under an EU regulation, the name of the person who deals with complaints about accessibility should be on the company’s website.

In a submission on behalf of Bus Éireann, the accessibility manager, Mr Clarke said that the company is committed to a vision to be the most customer-centred and sustainable transport company in Ireland, with “customer first” as a key value.  In all their engagements with customers, the company seeks to demonstrate its commitment to creating and maintaining an environment where everyone is treated equally and where differences are welcomed and embraced.

Investigation of Mr Walsh’s Complaint

Mr Clarke apologised for the fact that the complainant got no response to his ES1 form, or to his efforts to raise the issue with the Travel Assistance office in Cork and with the local operations manager.  He said that the complainant sent two ES2 forms, and that the first one seems to have gone missing.  An investigation was carried out by the local management team and the driver of the bus on the day in question was interviewed by Ms Frances McCarthy, the service delivery manager for Cork and Tralee.  Ms McCarthy attended the hearing of this complaint.

Ms McCarthy said that the driver has been working with the respondent since 2019 and is usually a city-based driver.  He is rostered on the Kinsale to Cork route for eight days in every 25 weeks.  Ms McCarthy said that the driver has not been the subject of complaints in the past and he was genuinely very sorry for what happened.  When he spoke to Ms McCarthy, the driver agreed that he told the complainant that there was no room for him and his dog.  He said that the reason he refused to allow him to travel was because he was driving a coach bus, rather than a “city-type” bus.  He had a concern that the dog would block the aisle and, for this reason, he thought that the dog couldn’t be accommodated.  A city-type bus has more space allocated to the wheelchair area and also, more space around specific seats that are designated for people with additional needs.  Ms McCarthy advised the driver that his understanding of the policy was wrong and that the complainant should have been allowed to travel on the bus with his dog.  The driver apologised for his oversight.

Mr Clarke said that staff are not under an obligation to give their names to passengers, but, if they decide not to do so, they should inform the passenger in a respectful manner.  Mr Clarke said that the driver was reminded of this requirement.  He said that the driver’s instruction to the complainant to take a picture of the license plate “could have been communicated more effectively” and that the company will address this in future driver-training.

Mr Clarke said that all new drivers receive disability awareness training and that the local management looks at training needs.  Since the incident on June 26th 2023 in Kinsale, the accessibility manager and the Travel Assistance team have been actively engaging with frontline staff, including drivers, so that they have a better understanding of the challenges faced by customers like the complainant and how the company can assist them.  As part of this, it is planned to have an information session for staff in Cork, where the focus will be on vision impairment. 

Ms McCarthy gave evidence about the three-week training provided to drivers at their induction.  She said that they are trained in customer care and in how to interact with people with disabilities and they have presentations from representatives from disability organisations.  She said that the majority of the staff are accommodating and helpful and she said that she will issue a general notice to all staff to remind them of the company’s obligations to people with disabilities and particularly, people with a vision impairment.

Conclusion

Concluding his submission, Mr Clarke said that Bus Éireann would like to apologise for the lack of response to the complainant’s correspondence, which he said, was due to some administrative issues.  

Mr Clarke said that the incident was an isolated one due to an honest mistake.  He said that he appreciates that the situation could and should have been handled differently and that the complainant should not have been refused entry to the bus.  However, Mr Clarke submitted that the treatment of the complainant does not constitute discrimination and he said that this is clear from the fact that he made his return journey to Kinsale without incident.  When he was made aware of his mistake, Mr Clarke said that the driver was very apologetic and that this gap in his knowledge has been rectified.  Mr Clarke said that he would like to meet the complainant and to travel with him and his guide dog, to get a better understanding of what the company is doing well and the issues that need to be addressed.

The respondent’s objective is to ensure that customers such as the complainant continue to receive the high-quality customer service that they are entitled to expect from Bus Éireann.  Mr Clarke said that, as part of the Travel Assistance scheme in Cork, they engage with a variety of local organisations that provide support for people with disabilities.  This gives an opportunity for feedback between the respondent and organisations that address how it provides a service for people with additional needs.  This scheme is being expanded and Mr Clarke said that he would like to invite the complainant to meet with him and the Travel Assistance team to get a better understanding of how they can engage with the visually impaired community. 

Concluding his submission, Mr Clarke said that the respondent would like to reimburse the complainant for the cost of his taxi fare to Cork on the day of the incident.  He hopes that the complainant will continue to use the respondent’s services with his dog and he asked me to conclude that, as an isolated incident caused by human error, what occurred was not discrimination.

The Legal Framework

The preamble to the Equal Status Act 2000 (“the Act”) states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

The link between discrimination and the failure to provide reasonable accommodation for a person with a disability is clearly set out at Section 4(1) of the Equal Status Act 2000, “the Act:”

(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.

Subsection (6)(b) tells us that a “service provider” is,

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

Section 5(1) is the opening section of Part II of the Act, titled, “Discrimination and Related Activities.”  This section specifically addresses the disposal of goods and the provision of services: 

(1)  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.

It follows therefore that, in accordance with these objectives, as a person with a vision impairment, when he is using Bus Éireann’s services, the complainant is entitled to be provided with reasonable accommodation, in his case, permission to travel with his assistance dog.

Under the UN Convention on the Rights of Persons with Disabilities, of which Ireland is a signatory, articles 19, 20, 29, and 30 on accessibility and participation place an obligation on public and private service providers to be inclusive.  The effect of this obligation is that a person who uses a trained dog to assist with their daily life, is entitled to access services in the same manner as a person who is not disabled.

Findings

Despite the efforts of disability organisations and advocacy groups, there are occasions when blind people meet resistance when they attempt to access a service with their dogs.  The identifiable livery on assistance dogs is intended to communicate to service providers that their user has a disability and requires additional support.  The respondent’s case is that, in this isolated incident, the driver did not intentionally discriminate against the complainant, but he was concerned that his assistance dog would block the aisle of the bus.  If common sense had prevailed, and, if the driver had been more positively disposed to assisting the complainant, he could have asked him where his dog normally sits on single deck buses, or he could have called his base for advice. 

I note the intention of the respondent’s representatives to engage on an individual basis with the complainant and with representatives of vision impaired people in Cork, and to identify the barriers to travelling at ease with guide dogs.  I also accept that the accessibility manager is committed to training bus drivers on how to interact with people with disabilities, and specifically, blind people, to ensure that they receive the service to which they are entitled.

I have considered the respondent’s approach to this complaint and it seems to me that reasonable efforts are being made to ensure that staff are trained to ensure that the company meets its obligations to disabled people, and that it fulfils its aim to put the customer first.  I accept that what occurred on June 26th in Kinsale may have been an isolated incident; however, the impact on the complainant was considerable.  He was publicly humiliated, he was inconvenienced in how he went about his daily business, he was out of pocket and he suffered further distress when he had to give his bank ATM number to a taxi driver.  The overall effect of this experience doesn’t end in one day, but it permeates into the future, making the person anxious about going out and having an ordinary life. 

it is my view that what occurred on June 26th 2023 at the bus stop in Kinsale is encompassed by the definition of discrimination at s.4(1) of the Equal Status Act, when the driver failed to act reasonably to accommodate the needs of the complainant.  The facility that he required, permission to travel with his dog, was a policy supported by the respondent and was available to him.  Sadly, the driver acted unreasonably by not allowing him to access that facility.

The facts of this case have been clearly set out and there is no dispute about what occurred at 1.00pm on June 26th 2023 at the bus stop in Kinsale, when the complainant was prevented from getting on the bus to Cork.  The respondent’s position is that what occurred was an isolated incident, and, as such, they argue that it does not amount to discrimination.  Even if it was an isolated incident, the fact that the complainant wasn’t permitted to travel on the bus because he was accompanied by an assistance dog is a discriminatory act.  Based on this fact, it is clear to me that, contrary to section 4(1) of the Equal Status Act, the complainant was discriminated against on the disability ground.

As a legal precedent which is relevant to the complainant’s case, I refer to the decision of the former Equality Tribunal in the case of John Roche v Alabaster Associatestrading as Madigan’s public house[1].  Mr Roche was refused service in the pub when the management claimed that his assistance dog presented a risk to food hygiene.  Mr Roche was awarded compensation of €3,000 and the pub was directed to display a notice stating that people with disabilities and people with guide dogs are welcome.  Aside altogether from the positive effect that might emerge from training and engagement with disability advocates, a simple notice on all buses, indicating that guide dogs are welcome, might avoid the recurrence of the incident at the bus stop in Kinsale in June 2023.

For the reasons set out above, I have decided that the complainant was discriminated against contrary to Section 4(1) of the Equal Status Act 2000 – 2015.  In terms of redress, Section 27(1) of the Act provides that:

…the types of redress for which a decision of the Director of the Workplace Relations Commission under section 25 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of the prohibited conduct concerned; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

In making an order for redress, I have considered the complainant’s experience and the fact that, at the hearing, the respondent’s representatives apologised for the stress and inconvenience that was caused because of the conduct of their driver.  I make an order that the respondent pays the complainant €4,000 as compensation in some measure for the distress that he suffered.  I would also ask the accessibility manager to consider the posting of a notice on buses, to inform drivers that guide dogs are permitted to travel.

Assistance dog, discrimination